Human Rights Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America

xii.Right to Humane Treatment during Detention

81. 
    Under Article XXV of the American Declaration, every person who has been deprived of his liberty “has the right to humane treatment during the time he is in custody.” Therefore, in those exceptional cases in which deprivation of liberty for migrants is necessary and complies with the standards outlined above, States must respect the human rights of those in its custody, ensure that they are treated humanely, that conditions of detention are dignified, and that immigration detentions, which are civil in nature, do not become punitive.
    

82. 
    The Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas are illustrative in this area and offer specific guidelines on the treatment that persons in the custody of a State must receive to ensure that they are being treated humanely. This includes: the right to food, drinking water, sleeping quarters, hygiene, clothing, educational activities, recreation, religious freedom, and visits.⁹²
    

83. 
    Additionally, the organs of the inter-American system have identified specific rights that follow from the obligation to ensure humane treatment, which include the following: right to medical care, right to be separated from inmates held under criminal jurisdiction, right to be notified of transfer to other detention centers, right to have duly trained and qualified personnel and independent supervision at the place of detention, right to an effective procedure for petition and response, specific rights of asylum-seekers in detention, and adherence to the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the UN Guidelines on the Detention of Asylum-Seekers, among other instruments and guidelines.⁹³
    

xiii.Right to Due Process and Access to Justice

84. 
    Under Article XXVI of the American Declaration, “[e]very person accused of an offense has the right to be given an impartial and public hearing . . .”  The IACHR has maintained that Article XXVI also applies to immigration proceedings:
    

to deny an alleged victim the protection afforded by Article XXVI simply by virtue of the nature of immigration proceedings would contradict the very object of this provision and its purpose to scrutinize the proceedings under which the rights, freedoms and well‐being of the persons under the State’s jurisdiction are established.⁹⁴

85. 
    During any proceeding that can result in a penalty of any kind, all persons are equally entitled to the following minimum guarantees:  the right to a hearing, with due guarantees and within a reasonable time by a competent, independent, and impartial tribunal; prior notification in detail to the accused of the charges against him; the right not to be compelled to be a witness against oneself or to plead guilty; the right of the accused to be assisted without charge by a translator or interpreter;  the right of the accused to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; the right to provision of free legal representation to indigent persons in immigration proceedings⁹⁵; the right of the defense to examine witnesses present in the court and to obtain the appearance of witnesses, experts or other persons who may throw light on the facts; and the right to appeal the judgment to a higher court.⁹⁶ While many of these guarantees are articulated in language that is more germane to criminal proceedings, the Commission has deemed that these basic due process protections must be strictly enforced in immigration proceedings as well, given the interests at stake of such proceedings and their consequences.⁹⁷
    

86. 
    The Commission has previously recognized and reiterates that migrants are at a real disadvantage that can adversely affect the enjoyment of due process guarantees unless States take special countervailing measures to reduce or eliminate the procedural handicaps with which migrants are encumbered.⁹⁸
    

xiv.Right to Consular Notification

87. 
    In evaluating a State’s compliance with a foreign national’s due process rights under Articles XVIII and XXVI of the American Declaration, the Commission has previously determined that is necessary and appropriate to consider the extent to which a State party has given effect to the requirements of Article 36 of the Vienna Convention on Consular Relations (“Vienna Convention”)⁹⁹, providing for the right to consular notification.¹⁰⁰
    

88. 
    Article 36 (“Communication and Contact with Nationals of the Sending State”) of the Vienna Convention establishes:
    

1. 
   With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
   

1. 
   consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
   

2. 
   if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
   

3. 
   consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
   

2. 
   The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
   

89. 
    Therefore, when interpreting and applying the provisions of the American Declaration to a foreign national who has been arrested, committed to trial or to custody pending trial, or is detained in any other manner by a State, the IACHR considers compliance with Article 36 of the Vienna Convention.¹⁰¹ The Commission has had the opportunity to analyze the importance of the consular notification obligation through its petition and case mechanism and has characterized the assistance of consular officials in certain cases to be “instrumental” in gathering evidence that would have a “decisive impact” on the evaluation of the cases.¹⁰²
    

90. 
    Within the inter-American human rights system, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, adopted by the Commission in 2008, establish that:
    

Persons deprived of liberty in a Member State of the Organization of American States of which they are not nationals, shall be informed, without delay, and in any case before they make any statement to the competent authorities, of their right to consular or diplomatic assistance, and to request that consular or diplomatic authorities be notified of their deprivation of liberty immediately. Furthermore, they shall have the right to communicate with their diplomatic and consular authorities freely and in private.¹⁰³

91. 
    The Commission additionally takes note of the United States’ own protocol on consular notification, as documented in the Bureau of Consular Affairs, Department of State, Manual on Consular Notification and Access. The Manual provides that “immigration, civil, and criminal detentions” are all types of detentions that create consular notification obligations.¹⁰⁴ If a person does not wish to notify the consulate of his or her detention, then the officer must make a note in the case file and must not inform the consulate.¹⁰⁵
    

92. 
    Thus, the Commission affirms the United States’ obligation under the American Declaration, as well as other international instruments, to inform non-nationals of their rights and, upon request, to notify without delay the consular officials of the corresponding State.