United Nations Committee on Migrant Workers
Day of General Discussion 2005
Written Contribution of the Villanova Law School Farmworker Legal Aid Clinic
Contacts: Elizabeth Barba, firstname.lastname@example.org, (011) 610-519-6417
Marisa Cianciarulo, email@example.com, (011) 610-519-5622
Beth Lyon, firstname.lastname@example.org, (011) 610-519-6417
Theme: Protection of human rights of migrant workers and members of their
families and its impact on development in the country of origin.
Summary: To further the Committee’s examination of the interaction of the human
rights of migrant workers and their families with development in
countries of origin, the following written contribution seeks to highlight
the issue of the economic costs of deportation to migrant workers and
their families. This problem has a negative impact on development in
countries of origin by preventing workers from preserving their savings
and in many cases to collect their earnings. The contribution argues that
the cost of deportation has a direct bearing on articles 8, 14, 15, and 22
of the Migrant Worker Convention (MWC). The submission describes
the unnecessarily high costs of deportation to deportees from the
United States as an illustration of this problem, focusing on detention,
delay, lack of legal representation, and costs of transportation. The
contribution highlights some good practices that have been adopted in
the U.S. deportation process. The contribution concludes with
recommendations for lowering the cost of deportation to migrant
The economic and human cost to migrants of making an illegal entry into countries of
employment is a common focus of concern. For example, gaining entry to the United
States is generally expensive as well as arduous and dangerous. A single individual who
wishes to migrate to the United States illegally may pay anywhere from US$1,000 to
US$100,000 to a smuggler, depending on the country from which they are emigrating,
the borders that will need to be crossed, and the level of danger involved in the journey.1
Moreover, from November 2004 to September 2005, more than 400 immigrants
attempting to enter the United States died.2 The number of border-crossing deaths is at an
all-time high over previous years.
Growing attention is also being paid to the costs of in-country human rights violations.
Financial Action Task Force, Money Laundering & Terrorist Financing Typologies 2004-2005, Chapter
3: Proceeds from Trafficking in Human Beings and Illegal Migration/Human Smuggling, page 73, June 10,
2005 available at http://www.fatf-gafi.org/dataoecd/16/8/35003256.pdf (last viewed on October 27, 2005).
Rotstein, Arthur, Record Deaths of Illegal Immigrants Trying to Cross U.S.-Mexican Border, Associated
Press Newswires, Dateline Tucson, Arizona, September 2, 2005.
Once in the United States, undocumented immigrants often work in jobs that fall well
below national labor standards, legal protections are minimal and the few rights that
immigrants do have are often never exercised for fear of threats of deportation.3 Blatant
failures of protection around the world severely impact development in both sending- and
receiving-countries. Receiving-country protection failures have been addressed recently
in important international and regional decisions as well as by numerous instances of
domestic legalization measures.
Less frequently discussed, however, is the high cost of the return journey paid by
migrants who are sent home through deportation processes. Following in Part II of this
contribution is a brief discussion of this issue, focused on four major aspects of the
problem: this discussion highlights aspects of the United States deportation process to
provide examples of both concerns and good practices. Part III of the contribution argues
that the costs of deportation have a direct bearing on articles 8, 14, 15, and 22 of the
Migrant Worker Convention. Part IV of the contribution provides some recommended
measures to avoid unnecessary costs to migrants in the deportation process.
II. Economic Costs to Migrant Workers and their Families of the Deportation
When a migrant worker is caught up in the deportation process, the worker and his/her
family incur direct economic costs related to frustrated economic rights and
opportunities, lengthy detention in remote facilities with high telephone costs, high
bonds, ticket purchases, and post-deportation requirements.
A. Deportations that Frustrate Enforcement of Rights
Significant costs arise when deportation is initiated at the behest of employers seeking to
avoid paying their workers, and when the deportation itself prevents workers from
exercising their contract and property rights. Deportation processes frequently arise from
workers’ attempts to exercise their rights in employment such as requests for payment of
wages or employment injuries benefits.4 As a result, deportation prevents collection of
moneys owed to workers.5 For example, the clinic is currently assisting a man who was
driven to the police station by an employer who had not paid him in weeks. The employer
convinced the police to charge the worker with the crime of “tampering with public
records” because of his purchased employment documents. Whatever the result of the
criminal process, when it has concluded, the worker will be referred directly to
deportation proceedings. The clinic is assisting the worker with his criminal and
Beth Lyon, When More “Security” Equals Less Workplace Safety: Reconsidering U.S. Laws that
Disadvantage Unauthorized Workers, University of Pennsylvania Journal of Labor and Employment Law
Lori A. Nessel, Undocumented Immigrants in the Workplace: the Fallacy of Labor Protection and the
Need for Reform, Harvard Civil Rights-Civil Liberties Review (2001).
The written contribution of the National Employment Law Project (NELP) describes the inter-agency
agreements and manuals that in the United States purport to protect workers from employer-initiated
deportations. The NELP contribution also highlights the United States’ many failures to enforce this
immigration matters, but he is unwilling to press his claim for unpaid wages because he
fears that this will further endanger his immigration status.
Deportations can also frustrate the assertion of economically important rights when
carried out in concert with other enforcement actions. A recent illustration of this point
involves a group of men whose funds were seized were deported without the opportunity
to reclaim it from the government. They had been working illegally in the United States
for several years had been afraid to put their money into a bank, so they packed cash in
their suitcases and attempted to fly home a few days before the winter holidays.
Identified as possible drug dealers because of the cash and because of their nationality,
they were detained and the U.S. Drug Enforcement Agency (DEA) seized their
considerable savings. They were held in a remote detention facility through the holidays.
When the DEA determined that they were not going to prosecute the men, the agency
notified the immigration authorities that deportation could proceed, which it did in short
order. No one attempted to inform the men on how to file a reimbursement request with
the DEA, and they were deported before pro bono counsel could assist them. Some of the
men got their money back months later, by paying out a fee to private counsel. Another
man who lived in a village without telephone service was alerted to his rights when the
Farmworker Clinic made a radio announcement from the capital city of his home country
nearly eight months after his deportation, and the Clinic petitioned the DEA to permit a
late application for reimbursement. Even with the loss of access to their funds and costs
associated with reclaiming them, these men were lucky to receive legal assistance. In
many such cases, innocent deportees forfeit their savings and possessions because the
deportation process prevents them from learning about or asserting their rights.
B. Costs of Detention
Many undocumented immigrants who are apprehended are held in detention facilities. In
1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(hereinafter IIRIRA) amended the Immigration and Naturalization Act to mandate
detention, without release, for almost all persons who have committed crimes.6
Commission of even minor crimes results in mandatory immigration detention for the full
period of deportation proceedings, even for immigrants who have significant ties to the
community and whose family suffer extreme hardship as a result of the continued
detention.7 Detainees who have committed aggravated felonies or two or more smaller
crimes or moral turpitude are detained on a mandatory basis and are ineligible for a
bond.8 The only persons eligible for release if subject to mandatory detention are those
who are witnesses or whose release will protect other witnesses.9 In the fiscal year 2003,
U.S. Immigration and Customs Enforcement (ICE) Office of Detention and Removal
Ira J, Kurzban, Kurzban’s: Immigration Law Sourcebook, at 245 (9th Ed. 2004).
8 U.S.C. §1226(c) (2005)
8 U.S.C. §1226(c) (2005); See Detention Working Group of the National Lawyer’s Guild [hereinafter
National Lawyer’s Guild Report], Give Me Your Tired, Your Poor: A Report on Due Process Issues in
Massachusetts, July 29, 2005, p. 27, available at www.nlgmass.org/DWGreport070105.pdf (last viewed on
October 27, 2005).
8 U.S.C. §1226(c)(2)
(DRO) detained more than 230,000 immigrants.10
Undocumented workers face many costs as a result of these detention policies. First,
immigrants lose work time while in detention.11 In addition to protracted court
proceedings hampered by lack of counsel, many immigrants are forced to wait for their
home governments to acknowledge their nationality and furnish travel documents.12 As a
result, each immigrant averages approximately 42.5 days in detention before
deportation.13 Second, even in non-mandatory detention cases, any immigrant who has
violated immigration law can be ordered detained. In these situations, the government has
the option to grant release, or “parole,” secured by a bond of at least $1,500.14 Overall,
immigration bonds tend to be more expensive than state or federal bonds15 and are often
set at well beyond the minimum of $1,500, with no inquiry by adjudicators about the
individual or community’s ability to pay.16
C. Cost of Communication with Family and Counsel while Detained
When immigrants are held in custody by the U.S. immigration authorities, contact with
the outside world is extremely and disproportionately costly. Calls into the detention
centers cannot be initiated from outside. Instead, detainees must make a collect calls out
of the facility, to families and legal representatives alike. For detainees at York County
Prison in Pennsylvania, local calls out are US$1.75 to initiate the call, and an additional
US$.05 every three minutes. A 2004 lawsuit alleged that a 15-minute collect call from an
immigration detention facilities cost US$9.20, whereas a call of the same duration from a
federal criminal facility cost US$3.00.17
Because detention facilities and phone companies enter into contracts for detention
facilities, it is often a lucrative business for both. The 2004 lawsuit, filed against the
Corrections Corporation of America (CCA), alleged a monopoly in collect calls exists at
the detention centers.18 In addition, the Brennan Center for Justice submitted comments
to the Federal Communications Commission (FCC) on behalf of the “Ad Hoc Coalition
ICE Office of Detention and Removal May 4, 2004 Fact Sheet [hereinafter ICE] available at
http://www.ice.gov/graphics/news/factsheets/dro050404.htm (last viewed on October 20, 2005)
Lyon at 596.
See Zadvydas v. Davis, 533 U.S. 678 (2001) (U.S. Supreme Court decision ordering the U.S. government
to hold six month parole reviews for detainees held under unenforceable deportation orders).
Cornelius, Wayne A., Controlling ‘Unwanted’ Immigration: Lessons from the United States, 1993–2004,
Journal of Ethnic and Migration Studies, Vol. 31, No. 4, July 2005 available at
www.cri.uci.edu/pdf/JEMS--final.pdf (last viewed October 20, 2005).
8 U.S.C. § 1226(a) (2005).
Bails yes, Bail bond providers available at http://www.bailyes.com/immigrationlawsandinfo.htm (last
viewed October 27, 2005).
Lyon at 596.
The Brennan Center for Justice, Prisoner, January 16, 2004 available at
http://www.brennancenter.org/programs/lse/pages/view_elerts.php?category_id=8&page=1 (viewed last
October 20, 2005).
The Brennan Center for Justice, Prisoner, March 12, 2004 available at
http://www.brennancenter.org/programs/lse/pages/view_elerts.php?category_id=8&page=1 (viewed last
October 20, 2005).
for the Right to Communicate,” urging the FCC to prohibit collect call-only policies and
anti-competitive practices that lead to extremely high telephone rates and poor service for
those who are detained.19 These comments were submitted in support of a petition filed
with the FCC by 61 detainees and their families represented by the D.C. Prisoners’ Legal
Services Project, the New York-based Center for Constitutional Rights, and a private law
These lawsuits focused attention on the harmful effects that exclusive telephone contracts
and collect call-only policies have on those who are incarcerated, their families, and their
communication with counsel.21 The main allegation in the lawsuit claims that the CCA
signs exclusive agreements with the telephone company that pays the highest commission
to the CCA. The phone company then inflates the cost of collect calls because of the
effective monopoly that they have on phone service in prison.
These practices negatively do not only impact migrants, their families and their access to
counsel. The cost of outside communication also places a burden on the diplomatic
representatives of the countries of origin. Many diplomatic offices are forced to attempt
to fill the gap left by the lack available legal services and family support, an expense that
negatively impacts other development priorities.
D. Lack and Costs of Counsel
Any potential deportee who wishes to be represented must hire a private attorney.22 The
U.S. government does not provide an attorney to indigent immigrants facing deportation
proceedings.23 Because the government does not provide free representation, nearly half
of all detainees represent themselves pro se despite the fact that incarceration is handled
in the same manner as for criminal detainees.24 As noted above, detention facilities are
generally located in remote locations some distance from city centers, rendering access to
counsel impracticable. In the Washington, D.C., area, private immigration attorneys
charge nearly double for deportation representation if the respondent is detained.
Moreover, immigration is a complicated area of law, and pro se (self-represented)
immigrants are forced to complete complicated forms and appear before immigration
judges alone, hurting their chances of negotiating release and affordable bonds. As noted
in the box on the following page, the U.S. government has taken some measures to
Id. Other non-governmental organizations that joined the comments were: Capital Area Immigrants’
Rights Coalition in Washington D.C., Lewisburg Pennsylvania Prison Project, North Carolina Prisoner
Legal Services, Pennsylvania Institutional Law Project and the Defending Immigrants Partnership
(comprised of NLADA, the Immigrant Legal Resource Center, the National Immigration Project, and the
Immigrant Defense Project of the New York State Defenders Association). The American Civil Liberties
Union (ACLU), the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the Citizens
United for Rehabilitation of Errants all submitted separate comments.
8 U.S.C. § 1229a(b)(4)(A) (2005).
National Lawyer’s Guild Report at 8.
attempt to compensate for the lack of legal aid in deportation. These measures might be
replicable in other countries where legal aid is not provided.
Good Practices Arising from the U.S. Government’s Attempts to
Compensate for Lack of Legal Aid in Deportation
E. Costs of Physical Deportation
U.S. Department of Justice regulations permitting trained and
supervised law students and non-lawyers to represent indigent
immigrants in deportation proceedings.
Creation of the position of a Pro Bono Coordinator within the
E. Costs of Voluntary Departure
Immigration Court system to increase free representation.
Extensive cooperation with NGOs to create a Pro Bono project to
provide appellate deportation representation to indigent detainees.
Legal Orientation Program to provide rights information and
counseling at no charge to indigent individuals in deportation
E. Travel Costs
In lieu of ordering deportation, the Attorney General may allow an undocumented
immigrant to voluntarily depart the United States, at the immigrant’s own expense.25 The
benefit to the potential deportee of accepting voluntary departure is that the event will not
create a long-term bar on his/her return, and if s/he re-enters the country illegally again,
s/he will not be subject to criminal penalties. A deportee, on the other hand, who re-enters
the United States, can receive a criminal sentence of up to 20 years.26
However, voluntary departure comes at a substantial financial cost. If it is authorized
prior to completion of removal proceedings, the judge may impose conditions to ensure
the departure, including a voluntary departure bond.27 For those immigrants who are
allowed to voluntarily depart at the conclusion of removal proceedings, bond is required,
in the amount necessary to ensure that the immigrant will actually depart. 28 Bonds are
usually set at no less than $500.29
This bond is returned to those who report to the U.S. Consulate in their country. However
this process is also costly and time consuming. Once the immigrant reports to the U.S.
Consulate, the Consulate then sends a form back to the Department of Homeland Security
8 U.S.C. 1229c(a)(1) (2005).
8 U.S.C. 1326 (2005). Prosecutions under this provision have increased significantly. Federal court
prosecutions related to immigration increased to 32.5 percent in 2004, from 14 percent five years ago, and
for the first time exceeding drug charges. Dennis Romboy and Lucinda Dillon Kinkead, The Role of the
Law: Enforcing immigration Laws Not So Easy, Deseret Morning News (Oct. 13, 2005).
8 U.S.C. 1229c(a)(3) (2005).
8 U.S.C. 1229c(b)(3) (2005).
Interview with Judi Bernstein-Baker, Executive Director at Hebrew Immigrant Aid Society and Council
Migration Services of Philadelphia (October 19, 2005).
confirming that they arrived in the country,30 whereupon the funds are released. The
travel and delay necessitated by this process means that many bonds are never
Individuals who qualify for voluntary departure in the interior of the United States must
pay for their own flight home when they are voluntarily departing. For detainees, this
involves purchasing a top price “open” ticket that the government may use at its
convenience.31 This requirement more than doubles the cost of tickets. For example, an
off-season one-way ticket from Philadelphia to Mexico City is $500, whereas, an off-
season open ticket would be $1100. The price differential for a ticket from Philadelphia
to Beijing is $683 for an off-season one way and $1933 for an off-season open ticket.32
Mexican immigrants are often taken to the border rather than flown into the country. 33 In
order for Mexican immigrants to be allowed this option, they are apprehended but not
detained and willing to sign a form attesting that they will be voluntarily repatriating
themselves.34 Afterwards, they are bused to a gate on the border, where they re-enter
Mexico. Voluntarily repatriated migrants are in custody for only a few hours.35
In 1996, the United States created the Interior Repatriation program to return
undocumented Mexicans to the interior of the country. Eight years later, on June 9, 2004,
the White House reached agreement with the Mexican government to begin
implementing the program.36 This program was a departure from the practice of returning
undocumented Mexicans to the border. The program would instead fly undocumented
Mexicans who were apprehended in the Tucson and Yuma Sectors and who voluntarily
participated in the program into the interior of Mexico. 37 The program was first operated
from July 12, 2004 to September 20, 2004.38 During that time, there were 151 flights
from Tucson International Airport to the interior of Mexico, all funded by the U.S.
government.39 Over 14,000 migrants were returned to Mexico in this fashion.40
Immigrants who refused participation were repatriated either through Voluntary
Departure or through other removal proceedings.41
The United States’ purpose for the program was to reduce the number of undocumented
Interview with Worldtek Travel (October 20, 2005).
Interview with Judi Bernstein-Baker.
Cornelius at 6-7.
Nuñez-Neto at 17.
U.S. Customs and Border Protection, U.S.-Mexico Repatriation Technical Working Group Interior
Repatriation Program Evaluation-Joint Report, available at
http://www.cbp.gov/xp/cgov/border_security/border_patrol/ [hereinafter CBP] (last viewed October 27,
Id at 1.
Id at 3.
immigrants who, once returned to Mexico, immediately attempted reentry.42 Mexico
agreed to the program because it would be implemented during the period June through
September, a time when those attempting to cross the border are most endangered by the
extreme heat in the area.43
The Mexican Government estimates that from June 10 through September 20, 2005, more
than 20,000 immigrants participated in the program.44 There were 221 flights into Mexico
City.45 The United States estimated that the Mexican Government’s total expenses were
US$224,070.46 Although the U.S. Government confirmed no serious complaints of
migrant abuse or other humanitarian concerns, the Mexican Government, surveying
returning migrants, found seven individual cases of abuse.47
F. Costs of Post-Return Processes in Countries of Origin
Countries of origin that receive high numbers of deportees from the United States are
increasingly impacted by the deportation priorities and processes instituted over the past
ten years. The United States has greatly increased the deportation of criminal detainees,
who, returning with out support, integration services or, in many instances, community
ties in their home country, show high rates of recidivism upon return.48 The substantive
immigration policy decisions behind this trend are not the focus of this contribution.
However, the trend highlights the post-deportation processes that some receiving
countries have emplaced to manage the influx of deportees. These post-deportation
processes, which can include registration and monitoring of returnees, should also be
scrutinized as potential contributors to delay, and hence loss of work time, as well as
excessive travel costs.49 We support the 2005 Global Commission on Migration
recommendation in favor of re-integration programs,50 but urge the Committee to ensure
that country-of-origin deportee programs support rather than detract from human
IV. Human Rights Implications of the Costs of Deportation
Embassy of Mexico in the United States of America, September 30, 2005 Press Release, The Voluntary
Repatriation Program Ends, available at
http://portal.sre.gob.mx/usa/index.php?option=news&task=viewarticle&sid=160 (last viewed on October
Id at 3.
Margaret H. Taylor and T. Alexander Aleinikoff, Deportation of Aliens: A Geopolitical Perspective,
(1998), available at http://www.thedialogue.org/publications/program_reports/taylor_criminal.htm.
For an examination of the post-deportation policies of the Dominican Republic, for example, see Charles
Venator Santiago, The Impact of United States Deportation Policies on Dominicans, (Dominican Studies
Institute, CUNY, Research Monograph Series 2005); Charles Venator Santiago, Lost in Paradise: Some
Reflections on the Deportation of Dominicans to The Dominican Republic (2005).
Global Commission on International Migration, Migration in an Interconnected World: New Directions
for Action 38 (2005).
The economic costs of deportation to migrants directly implicate at least five Convention
Provisions: 1) the Article 8(2) right to reenter one’s country of nationality; 2) the Article
14 right to be free from arbitrary interference with family and with communications; 3)
the Article 15 right to be free arbitrary deprivation of property; 4) the Article 22(6) right
to a reasonable opportunity before or after departure to settle any claims for wages and
other entitlements due to him or her and any pending liabilities; and 5) the article 22(8)
right not to bear the costs of expulsion. It should be noted that the non-economic human
and dignitary costs of deportation are beyond the scope of this contribution and implicate
any number of additional provisions of the Convention.
In order to highlight the connection between deportation and development in countries of
origin, this contribution examined the economic cost to migrants of deportation, using
examples from the United States and from countries of origin receiving high volumes of
deportees from the United States. We recommend that the Committee acknowledge the
monetary costs of deportation as both a development and a human rights issue, even as it
analyzes the human costs of deportation in this manner. We respectfully request that the
Committee consider the costs of deportation as it monitors compliance with the
Convention. Specifically, we request that the Committee make the following
recommendations relating to deportation processes:
Countries of Employment:
Create and enforce protection measures to ensure that employers and government
agencies cannot avoid their economic responsibilities by invoking criminal or
deportation processes against workers.
Heavily weigh the factors of family need, community ties and ability to pay when
determining whether to detain people pending deportation processes.
Place detention facilities near sources of legal representation and community
In situations of lengthy detention, facilitate communications with family and legal
Work with high-scale source countries to arrange orderly and rights-protective
Countries of Origin:
Monitor costs to nationals caught up in deportation processes and raise them with
countries of employment.
Respect the right of nationals to return home through timely acknowledgement of
nationality and provision of travel papers.
Create post-deportation programs that emphasize reintegration and human
development over detention and monitoring.