ImmPolitic

Welcome to ImmPolitic, the National Immigration Forum’s blog. Here we will comment on current developments in immigration policy and politics from the perspective of a Washington-based, national pro-immigrant organization.

Detention Reform: A Mixed Review (Part 1)

July 27, 2010 - Posted by Lena Graber

 

 

On August 6, 2009, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton announced plans for sweeping reforms of the immigration detention system. 

 

On the occasion of the fast-approaching one year anniversary of the announcement of major detention reforms at ICE, the agency and detention advocates have an opportunity to reflect on the progress to date.  Although there have been some accomplishments on detention reform, there is a long way to go before the system can be characterized as civil and humane.  (ICE lists its own perspective on its achievements here.)

 

One aspect of the promised reforms launched last week: ICE’s Online Detainee Locator System. 

 

For years, many immigrants taken into ICE detention have been whisked off and effectively disappeared, as family and attorneys struggled to find them in the maze of ICE’s vast detention system.  With the Online Detainee Locator System (ODLS), anyone can search for a detainee by name and country of birth, or Alien Registration Number and country of birth.  The locator will report whether the detainee is currently in ICE custody or not, and provides information about what facility the detainee is in.  If an individual has been released from ICE custody within the last 60 days, the locator provides the telephone number for the ICE field office with jurisdiction over the former detainee. 

 

The ODLS should result in significant improvements in detention management and transparency for the agency.  Given the huge proportion of detainees that are transferred between facilities, often multiple times, during their detention, advocates hope that the ODLS will greatly reduce the previously widespread problems of detainees functionally vanishing, leaving families desperate to know what has happened to their loved ones, and frustrating attorneys with hours of dead-end phone calls trying to locate their clients.  There are limits to the locator system.  One, for those searching by name, the spelling of the detainee’s name must exactly match ICE’s detention records.  ICE might not have entered the name correctly, especially in cases where a detainee has two last names that may or may not be hyphenated.  Hopefully, searchers will keep guessing alternative spellings if they don’t have a hit on the first try.  Secondly, ICE’s track record on the accuracy of detainee information has not instilled faith in the ability of the agency to keep track of all their detainees.  Third, the ODLS is inaccessible to anyone who lacks computer and internet access; there is no telephonic option.

 

Unfortunately, more people than ever before have a need to use the ODLS to locate a member of their family or community.  The Obama administration is detaining and deporting immigrants in greater numbers than ever before.  For the hundreds of thousands detained and deported in just the last two years, the ODLS comes too late to have helped their families find them in detention or try to find them a lawyer.  

 

A major problem with the detention system that has yet to be addressed is the incarceration of mentally disabled detainees.  Many of these individuals are held by ICE in unsafe conditions, while their cases are indefinitely continued because they are unprepared to represent themselves in immigration court.  As part of a large study on people with mental disabilities in the immigration system, Human Rights Watch (HRW) interviewed over 100 mentally impaired detainees, several of whom had been in detention for more than a year, although 2/3 of HRW’s interviewees did not even know when they had entered ICE detention.  Detainees with mental illness or cognitive disabilities, an estimated 15% of the entire detained population, often end up in segregation, the agency’s term for solitary confinement, as a result of their disability.

 

ICE recently directed its personnel against detaining individuals with medical or mental illness in some instances.   A June 30, 2010 ICE memo on civil immigration enforcement priorities stated that ICE field office directors should not “expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.”  It’s too soon to see what results this memo can bring.  We hope that de-prioritizing the confinement of nursing mothers and seriously ill immigrants will be an easily obtainable outcome.  It is long overdue.

 

Image by Flickr user 710928003.

Detention ICE

Court Closes Door for Lawsuits to Hold Officials Accountable

May 19, 2010 - Posted by Lena Graber

On May 3, 2010, the Supreme Court ruled that government doctors are immune from personal liability for inadequate medical care of immigration detainees.  The bereaved family of deceased immigration detainee Francisco Castaneda can only win limited remedies by filing suit against the government itself, where no jury trial or punitive damages are available, even for egregious conduct.

Francisco’s case rests among the many horror stories of medical care for immigrant detainees.  Despite advanced penile cancer, he was held in detention without treatment for 10 months before receiving a biopsy.  He was abruptly released before the results came in, because the government did not want to pay for treatment.  Upon release from ICE custody, Francisco went to the emergency room, where his penis was amputated, but the cancer had spread and he died a year later, at age 36.

Under the Obama administration, DHS has promised an overhaul of immigration detention, but Francisco Castaneda’s case reminds us that promised reforms come too late for many.  Despite months and months of discussions, very little has changed for the hundreds of thousands of immigrants shunted through the system.  A pervasive attitude that immigrant detainees who complain are just “acting out” or “faking it” has contributed to many detainees not receiving the care they desperately need.  Since 2003, there have been over 100 deaths in ICE custody.  Detainees with physical or mental illness are often segregated, further exacerbating their condition.

Despite continued pressure from advocates that detention should be a measure of last resort, not a default decision, ICE continues to plan new and larger detention centers to hold more people.  Immigrants are held in jails despite being innocent of committing any crimes, face persistent obstacles to receiving adequate medical care in detention, are separated from family and loved ones, and are transported hundreds of miles, usually in shackles, to be held in isolated facilities while awaiting their fate. Meanwhile intended reforms of the detention system drag on with painfully small incremental changes. 

Francisco Castaneda’s case once again shows us exactly what is at stake when detention standards are not only inadequate but unenforceable, and when there is broad immunity enjoyed by the persons responsible for the treatment of immigrants in their charge.  With minimal accountability for how they treat people in their own custody, DHS continually fails to provide dignified or tolerable treatment of immigrant detainees. 

Photo from America’s Voice.

Court Cases Detention ICE

Update: ICE Clarifies It’s Priorities

March 31, 2010 - Posted by Maurice Belanger

 

On March 30, we wrote about a Washington Post story about a memo from a high-level Immigration and Customs Enforcement (ICE) official that appeared to be pressing ICE offices to bring their number of arrests up to meet a “goal” of 400,000 criminal and non-criminal arrests by the end of the fiscal year.

On Monday, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton met with a group of stakeholders to clarify ICE’s priorities.  In a follow-up letter, Mr. Morton underlined what he stated in an earlier press release re-acting to the Washington Post article.

“I cannot state strongly enough my opposition to quotas.  ICE does not, and on my watch will not, impose quotas that propel field officers to identify and arrest any particular number of non-criminal aliens.”  

Mr. Morton pledged to review the work plans of each ICE field office to make sure they incorporate this policy.

In a separate memo that went out to ICE field office directors on March 26 (and mentioned in the Post story of March 27), James Chaparro (author of the February 22 memo at the center of the controversy) “clarified” his earlier memo.  The March 26 memo also alludes to the tightrope the agency is forced to walk when it must enforce the rules of a dysfunctional system.  Here’s what I’d call an understatement:

“The balance between our priorities, the budget, and congressional expectations can be challenging…”

Chaparro asks his staff to “remain focused” on identifying and removing “aliens who pose a threat to national security or public safety…, aliens who are fugitives or otherwise obstruct immigration controls” (including those who re-enter the country illegally after removal and those who obtain admission through fraud) and “illegal entrants apprehended at and near the border…to stop the prior practice commonly referred to as ‘catch and release’.” 

Each of these categories is accompanied by a set of sub-priorities within them.  You can read the complete memo here. 

Beyond these priorities, though, the memo acknowledges that other immigrants unlawfully present can’t be ignored.

“To be clear, ICE employees should continue to enforce immigration laws and this memorandum should not be construed to prohibit the removal of other aliens unlawfully in the United States.”

In his letter to stakeholders, Morton also clarifies somewhat that, for purposes of ICE’s enforcement priorities, “criminal aliens” means “aliens convicted of crimes,” not “aliens charged with crimes.”  

Of course, my lawyer friends will say that more clarification will be needed on what is meant by “crimes.”  Especially in the separate reality of the immigration context, even a minor crime can be an “aggravated felony.” 

What remains unclear is the concern that, beyond the focus on fugitives and those who have been convicted of crimes, there is a perception that a certain level of detainees must be maintained.  In the memo by Mr. Chaparro, he says,

“We have an obligation to focus on our priorities while also adhering to Congressional mandates to maintain an average daily population and meet annual performance measures.” (Emphasis added.)

The conference language spelling out spending for ICE for Fiscal Year 2010 is somewhat more vague on the level of detentions.

“Provided further, That funding made available under this heading shall maintain a level of not less than 33,400 detention beds through September 30, 2010….”

In other words, we have to maintain a certain capacity in our gulags, but we do not have to keep them full to capacity.

On the other hand, the conference report is less vague about ICE priorities:

“That of the total amount available, not less than $1,500,000,000 shall be available to identify aliens convicted of a crime who may be deportable, and to remove them from the United States once they are judged deportable … Provided further, That the Secretary shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime….”

The bottom line, though, is that enforcing the rules of a broken system, for as long as Congress fails to act to fix it, will be a thankless task.  Since the quota story broke in the Washington Post, some advocates are calling for Morton’s dismissal.  If Morton does not steer his agency to focus on removing people who actually may be a threat, he will face growing criticism from immigrants and their growing number of supporters all across the country—criticism that may lead to the downfall of the Administration.  On the other hand, if he is successful in getting the agency to focus on his stated priorities, he is going to get beat up by members of the minority party who would rather see more families being torn apart and workers sent out of the country.  

There is no way to make everyone happy, and he shouldn’t try.  Until Congress acts to make the laws more sensible, Mr. Morton his going to have to pick his priorities, stick to them, and take the criticism that will come.

 

Detention ICE Raids

The Trouble with Enforcing Broken Immigration Laws

March 30, 2010 - Posted by Maurice Belanger

What happens when you go to shift paradigms, but your transmission fails?

Events of the past week have placed a spotlight on Immigration and Customs Enforcement (ICE), the agency responsible for enforcing immigration laws in the interior.  An article appearing in the Washington Post on March 27 reported on a memo sent on behalf of James Chaparro, Director of ICE’s Office of Detention and Removal Operations on February 22 that appears to endorse arrest quotas in contradiction to stated administration enforcement priorities.

Before I get into that, a little background. 

After the failure of immigration reform legislation in the Senate in 2007, the Bush Administration decided to drop the hammer on undocumented immigrants, regardless of whether they posed a threat to communities or were merely here seeking opportunity to provide for their families.  As former Homeland Security Secretary Michael Chertoff put it at a press conference with Senate supporters of the failed legislation,

“You will continue to see heart-wrenching examples of families being pulled apart.  In order to regain credibility with the American people, we’re going to have to be tough.”

Part of the effort to “regain credibility” was to be able to tout large numbers of deportations, and this necessitated a focus on immigrant workers at workplaces and non-criminal immigrants in their homes.  ICE’s Fugitive Operations Teams were set up to go after immigrants who had been ordered removed from the U.S., but failed to depart (the so-called “absconders”).  Last year, it was revealed that each team was assigned to make at least 1,000 arrests each year.  To boost numbers, teams abandoned a focus on absconders.  The San Francisco Chronicle, for example, reported that,

An internal ICE report released earlier this year showed that agents arrested two dozen Latinos at a Maryland convenience store in 2007 after their supervisor told them to boost arrests because they were behind reaching their goal.

A report by the Migration Policy Institute last year noted that in 2007, 40% of Fugitive Operations Teams’ arrests were neither criminal nor fugitives.

The new Administration stated that it would prioritize removal of immigrants who have committed crimes and posed a threat to their communities.  Indeed, Assistant Secretary John Morton, the new head of ICE told reporters in August 2007 that the agency was no longer using arrest quotas.

So, in February of this year, Mr. Chaparro writes his memo, which in part says,

“Current non-criminal removal projections put is (sic) well short of our FY10 goal. … The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals—well under the Agency’s goal of 400,000.” (Emphasis in original.)

Under a section titled, “Here is What I Need You To Do,” the memo goes on:

“Within 30 days we will increase our national [Average Daily Population] by 3,000 bringing our national overall ADP to approximately 32,600.”

Sounds like a quota, doesn’t it?

Apparently, it sounded like a quota to Mr. Chaparro’s boss, John Morton, who immediately issued a statement following the appearance of the Washington Post article revealing the Chaparro memo.  That statement said in part,

“Significant portions of the memo … did not reflect our policies, was sent without my authorization, and has since been withdrawn and corrected.

We are strongly committed to carrying out our priorities to remove serious criminal offenders first and we definitively do not set quotas.”

The Post article noted that, even before the Morton statement was issued,

Chaparro issued a new memo stating that his earlier e-mail “signals no shift in the important steps we have taken to date to focus our priorities on the smart and effective enforcement of immigration laws, prioritizing dangerous criminal aliens….”

At times like these, it sounds a little like the old enforcement policies of the last administration have been coated with new buzzwords, and they are now “smart, effective enforcement” sort of like how coal has become “clean coal” in the past year.

While Morton’s statement repudiating the Chaparro memo was unequivocal, in other contexts Mr. Morton has sounded more…equivocal.  There was an exchange in a hearing on March 18 with Hal Rogers (R-KY), the ranking Republican on the Appropriations Committee’s Homeland Security Subcommittee, in which Mr. Morton seemed to suggest he plans to implement quotas.  Here are some excerpts:

ROGERS: “However, you’ve all but stopped apprehending and detaining non- criminal illegal aliens. As I said in my opening statement, a major, major decline in administrative arrests—that’s non-criminal arrests—down 68 percent.”

MORTON: “What I will tell you there is you are right that a number of the categories that you identified are down from the previous year. It’s of concern to me. I’ve been talking about it the last few weeks and we are going to do better.”

ROGERS (a bit later):  “I’m just saying that the unused beds are an indication that you’re not apprehending and deporting the numbers that you’re talking about. Otherwise you wouldn’t—you would use every bed you could. We’ve done it for decades.”

MORTON: ”… on April 1st you are going to see us move to something very close to 33,400 and run it for the rest of the year.”

Until Congress acts to reform our broken immigration laws, ICE is stuck enforcing laws that don’t make sense.  Mr. Chapparo alludes to the bind the agency is in in his second memo (mentioned above), when he refers to the “smart and effective” prioritization of “dangerous criminal aliens,”

“while also adhering to Congressional mandates to maintain an average daily [detention] population and meet annual performance measures.”

Still, the Administration has to decide what it’s priorities really are, get everyone in the Department of Homeland Security on board, and stick to the decision.  Mr. Morton only creates confusion and creates a credibility problem both outside and inside the agency when he says one thing in a press statement, and another thing to one of Congress’ immigration hardliners.  Until he can provide direct and clear leadership to his subordinates, Mr. Morton will be stuck in neutral.

Detention ICE

Matching Funds for Due Process

February 15, 2010 - Posted by Maurice Belanger

Our friends at the National Immigrant Bond Fund recently posted a video recalling an immigration raid that was conducted on a printer factory in Van Nuys, California (Southern California) two years ago.  More than 100 armed ICE agents stormed the factory and arrested 150 workers.  Immigrants were required to wear an electronic monitoring bracelet (and were required to have a land line phone so they could be reached).  The alternative to this virtual house arrest was release on bond.

It is often the case that immigration violators who have been arrested and detained (or, in this case, having to stay where their movements can be monitored) cannot scrape together the money to make bond even if they are offered release on bond.  If a defendant cannot make bond, chances are slim that the individual will be able to assert his or her due process rights—by, for example, pursuing avenues that may be available to stay in the U.S.  They are much more likely to be deported even if they might have had a valid claim to stay in the U.S.

Being out on bond makes it much more likely that the individual will be able to find an attorney and get other assistance.  In the case of the immigrants picked up in the Van Nuys raid, being released on bond allowed them to have their day in court.  Many of them had remedies available to them.  According to the video, after two years everyone who wants to be in the U.S. is still here. 

When an immigration raid happens, even where there is an outpouring of support in the community for the arrested immigrants, there is only so much a community can do to help.  The Bond Fund makes the community national.  It aggregates donations from people who want to help no matter where they live.  It works with local organizations in communities that have suffered an immigration enforcement action and loans money to match funds raised by the detainee’s family and friends.  This way, one community does not have to shoulder the burden of helping all of the victims of a raid come up with funds to gain their release and assert their due process rights.

A donation to the Bond Fund is one way you can help immigrants gain a little bit of justice while we all wait for Congress to act so that immigrant workers and family members no longer need fear being jailed for working without permission.

To see the video, and to make a donation to the Bond Fund, click here.

Photo by Flickr user srqpix.

Detention Due Process

More Promised Change for Immigration Detention

January 27, 2010 - Posted by Maurice Belanger

On January 25, John Morton, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement (ICE), gave a speech at an event hosted by the Migration Policy Institute.

The bulk of his remarks were devoted to reform of the immigration detention system.  Morton reiterated that detention reform is a personal priority for him, and that ICE will engage in a sustained effort to transform the immigration detention system, an effort that will extend beyond his tenure.  This effort was first announced in August 2009, and re-announced in October 2009.  These announcements included fact sheets and media events laying out many of the reforms that Morton repeated this week.  Given the enormous scale of this announced reform, and the lengthy timeline required, we will be monitoring and periodically reporting about progress here.

He noted that ICE currently detains as many as 32,000 people a day in a vast network of more than 300 mostly penal facilities that are for the most part county, state, federal, and private prisons that ICE contracts with.

That is the crux of the problem. 

Some of the individuals ICE detains have been convicted of crimes, and the penal system is designed to incarcerate those in the criminal justice system.  However, the vast majority of those ICE has detained are being held for violations of immigration laws.  They are people who came here to work and have done so without authorization.  If they can’t show they have an avenue to stay here legally, they are being detained only until they can be removed—not because they have done anything more serious than work without permission.

What ICE needs, then, is to design a system that is appropriate to hold such people for a short period of time until their immigration cases are adjudicated and they are removed (or are found to be eligible for release).

Morton’s vision is to have a smaller network of facilities designed to hold suspected immigration violators, with appropriate medical care and transparent standards that are fully implemented.  These facilities will be managed by federal personnel.  That’s the long-range plan.  It is a long way to there from where ICE is now.

Morton did give a preview of changes to expect in the coming months.

The agency will soon have 50 new employees to monitor detention facilities.  (These same 50 positions were announced in October, but apparently have not yet been filled.)  An overdependence on contractors and a lack of federal employees to monitor them were blamed by Morton for leading to some of the problems that have caused the detention system to come under public and Congressional scrutiny in recent months.  Morton said his long-term goal is to have a federal monitor in each facility used by ICE. 

By this summer, there will be an on-line detainee locator system, so the family members and representatives of detainees can figure out where they are being held.

ICE is developing a classification system so that when someone enters the system there will be an assessment to determine their danger to the community, flight risk, and medical status.  Everyone with a medical issue will have a case manager assigned to them to ensure they receive appropriate medical care.  What Morton didn’t say is whether this classification system will result in a greater identification of those who qualify for release or enrollment in an alternatives to detention program.

The agency is now in discussion with contractors about designing a facility model that will be appropriate for the population ICE detains. 

Morton also noted that ICE is working with groups to revise its detention standards, but implementation of new standards will take time.  The problem with the current standards, he noted, is that they came out of the penal world, and they are not appropriate for the kind of civil system that he wants ICE to move toward.  Reading between the lines, it will be difficult to fully implement the kind of detention standards advocates want as long as immigration violators are being held in prisons.

For many persons who are now routinely detained, ICE is exploring alternatives to detention.  ICE will soon begin a pilot project with the Department of Justice’s Executive Office for Immigration Review (EOIR, the immigration judges).  This initiative was promised by January 2010 in the October detention reform announcement.  He noted that widespread implementation of alternatives to detention (Morton said the agency has 16,000 or 17,000 slots funded) will require more resources for EOIR; the backlog of cases for immigrants in proceedings who are not detained (and thus have a lower priority for the immigration courts) is very long.  The agency is about to submit a report to Congress on alternatives to detention.  (Morton and Secretary Napolitano previously pledged to submit this report to Congress by Fall 2009.)

The Administration’s budget, to be released on February 1st, should contain more clues as to what we can expect in the near term regarding the effort to reform the detention system.  All of this will take resources, but the reforms ICE has begun to tackle are long overdue and deserve to be funded.  Given that more than 100 people have died in immigration detention since 2003, these reforms could quite literally be lifesaving.

You can view a video of the program with Assistant Secretary Morton on the Web site of C-Span.

Detention ICE

More Questions About Detention Reform

January 11, 2010 - Posted by Brittney Nystrom

The Department of Homeland Security under the Obama Administration marked 2009 with splashy announcements of planned detention reforms intended to revamp the immigration detention system, in chief by designing a civil detention system more appropriate for holding immigration violators who should not be kept in penal institutions.

The announcements were made after a series of stories in the press and numerous reports by NGOs uncovered serious problems with the system of health care for immigrant detainees (problems that included the preventable deaths of several detainees).  Improved health care for detainees and more centralized oversight were central features of the 2009 detention reform announcements.  These announcements were encouraging. 

However, the ability of the administration to carry out the reforms was called into question in a New York Times report on January 10.

“as the administration moves to increase oversight within the agency, [newly obtained] documents show how officials — some still in key positions — used their role as overseers to cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.”

The Times story weakens the Administration’s stance against making legally-binding rules for immigration detention, something that detention reform advocates have long asked for.  The Administration argued that rule-making would be “laborious, time-consuming and less flexible” than its own overhaul.  In other words, in spite of its abysmal record, Immigration and Customs Enforcement (ICE) wants us to believe that it can police itself.

Advocates at Detention Watch Network expressed dismay and disappointment at the news,

“The Department of Homeland Security’s announced reform efforts are meaningless unless there is a fundamental shift in the way the agency operates, governed by enforceable standards and appropriate oversight of the agency’s authority which has long been unfettered.  It is unrealistic to expect that officials involved in the cover-up of previous abuses can lead a true reform effort.”

Detention reform will not be easy.  The system has grown to an unprecedented size.  Efforts at imposing good management practices are certain to take time.  In the meanwhile, individuals will linger in immigration custody in jails designed for the criminal justice system and families will continue to suffer. 

The task is made much more formidable due to Congressional failure to reform our immigration system.  The vast majority of immigrants who are jailed should be given a work permit, not a jail cell. A path to legalization would significantly reduce the number of individuals present in the United States in violation of the immigration laws, and consequently reduce the need for an immigration detention system. 

As we wait for Congress to do the right thing, DHS must do all that it can to transition to an immigration detention system in which preventable deaths are prevented and enforceable standards are enforced.  The deceptive and evasive conduct of ICE officials described by the New York Times must be replaced by transparency and accountability.  A new year and a new decade offer the opportunity for change.  We hope it’s not too late to teach an old dog a few new tricks.

Detention ICE

A Civil Detention System: Would Immigrants Have “Special” Rights?

December 11, 2009 - Posted by Maurice Belanger

 

 

Yesterday, the House Homeland Security Committee, Subcommittee on Border, Maritime and Global Counterterrorism held a hearing on the U.S. immigration detention system titled, “Moving Toward More Effective Immigration Detention Management.”  As is usually the case in a Congressional hearing, the question and answer session after the prepared statements of the witnesses provided an opportunity for Members of Congress to blur the facts (or, assuming a less sinister motive, to merely show that they have been poorly briefed on the issues).

 

To briefly review where we are on the issue of immigration detention, Immigration and Customs Enforcement (ICE) has embarked on an effort to reform its immigration detention system to reflect the fact that many of the individuals in its custody have committed only civil immigration violations.  Immigrants in ICE custody will be sorted out and released, placed in alternatives to detention programs where their appearance for legal proceedings can be ensured, or detained in facilities appropriate to the risk they present.  Non-criminal, non-violent immigrant detainees will not be jailed as if they represent a risk to society.  In other words, it is not appropriate to house someone who is being detained because their immigration papers aren’t in order in the same kind of facility used to house murderers and rapists. 

 

At the hearing, Representative Mark Souder (R-IN) translated this news into a concern that we would be treating non-citizens “better” than citizens who are detained.

 

“Non-citizens held in detention centers have broken the law. They should not be held in detention centers that are better than we give U.S. citizens.”

 

Let’s compare apples to apples.  Unlawful presence is a civil violation.  How do we treat citizens who have committed civil violations?  Generally, we don’t put someone who speeds (for example) in a jail with murderers and rapists; we don’t put them in jail at all.  In general, someone caught speeding will get a warning or a ticket and then be sent on their way.  (Someone may go to jail if they are exceedingly reckless, but that is rare.) 

 

Another category of detainees have entered the country illegally.  That is a crime—a misdemeanor.  A comparable misdemeanor for a citizen is something like loitering.  Again, this is not something for which we generally throw people in jail.

 

So the argument that non-citizens who may end up in low-security facilities will be getting a “better deal” than citizens is simply not true.  Citizens who have committed similar civil or low level criminal violations are not usually jailed at all.

 

ICE would continue to detain in secure facilities those who represent a threat to others.  According to the Migration Policy Institute, 11 percent of individuals in immigration detention with criminal records had committed violent offenses.  More than half of immigrants in detention have no criminal record. 

 

Another fallacy that came up in the hearing about non-citizens in detention was Mr. Souder’s assertion that “American taxpayers pay for their lawyers.”  False.  Non-citizens in removal proceedings are allowed to be represented by an attorney at their own expense, but most immigrants can’t afford one.  (This article from the Migration Policy Institute makes the case that immigrants in removal proceedings should have the right to government-provided representation, given the very serious consequences of removal proceedings, including banishment from the U.S., family separation, and the loss of a job or business.)  Immigrants who are not represented by an attorney are much less likely to be awarded whatever relief from removal they may be entitled to.

 

One of the witnesses, Mark Krikorian of the Center for Immigration Studies (an anti-immigrant group), raised another issue that requires correction.  He said that “virtual all illegal aliens have committed multiple federal crimes” such as “crossing the border illegally” “using false documents” etc.  Therefore, he said, “a very large portion of the illegal population [would not be eligible for legalization].”

 

Wrong again.  Any comprehensive immigration reform legislation would, of course, contain provisions that would waive bars to admission that are based on violations of immigration provisions having to do with an applicant’s illegal entry, loss of legal status, or working without permission.  Obviously, it would make no sense to create a legalization program and then make nearly everyone ineligible for that program.

 

Side note: The Forum’s Senior Legal Advisor, Brittney Nystrom, testified at yesterday’s hearing.  Her testimony can be found here.

 

Photo by Flickr user Still Burning.

Detention

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