DREAM Act (Development, Relief, and Education for Alien Minors Act) Arizona Interfaith Network

Arizona Interfaith Network An Affiliate of the Industrial Areas Foundation (IAF)

IMMIGRATION DETENTION - AN OVERVIEW

In 1954, the Immigration and Naturalization Service (INS) announced that it was abandoning the policy of detention except in rare cases when an individual was considered likely to be a security threat or flight risk.¹ The general practice was to avoid needless confinement and release undocumented immigrants while their administrative proceedings were pending. However, since the 1980s, detention has become a central enforcement strategy, even when legacy INS and now the Department of Homeland Security (DHS) has had significant discretion not to detain individuals while their immigration proceedings are pending.

In 1996, sweeping changes were made to the immigration laws drastically increasing the number of people subject to deportation and mandatory detention. These included certain groups of asylum seekers and lawful permanent residents who committed minor and nonviolent crimes such as one-time offenses and youthful indiscretions that occurred many years ago. Mandatory detention resulted in the unnecessary detention of many people at a high social and economic cost.

Is the United States Detaining Inappropriate Groups including Vulnerable Populations?

"An Albanian woman fled to the United States in May 1997 after being gang-raped by masked, armed men who were hunting for her husband for political reasons. She was...interviewed by an INS asylum officer and immigration judge at the detention facility in Elizabeth, New Jersey. Too traumatized and ashamed to talk about her rape through a male Albanian interpreter, the woman was deported under expedited removal and sent back to Albania, where she went into hiding. After the incident was reported in the press, the INS allowed her to return to the United States and subsequently granted her request for asylum." ²

The change in laws in 1996 combined with some of the detention policies issued by DHS's Immigration and Customs Enforcement (ICE) agency has resulted in a system with a "one size fits all" approach. There exists a perception that everyone who is detained is dangerous and poses a security threat. Yet, there are 22,000 people in detention on any given day. Many are held for weeks, others for months, and some for a decade or more. ³

These include people:

who are not security threats or flight risks;
who are hardworking and came to the United States in search of the American Dream and the freedoms that this country offers;
who are most the vulnerable, including asylum-seekers, torture survivors, and unaccompanied children;
who are lawful permanent residents and family members of U.S. citizens or lawful permanent residents;
who were deeply integrated into our economy as workers, consumers, and taxpayers. According to the U.S. Chamber of Commerce, undocumented workers "are working hard and performing tasks that most Americans take for granted but won't do themselves...." ⁴
whose deportation orders cannot be carried out and are kept in indefinite detention, contrary to Supreme Court decisions. ⁵

There are less expensive and more effective alternatives

Although there exist less expensive and more effective alternatives to detention, they continue to be under-funded and overlooked in favor of detention. For example, Congress recently approved $90,000,000 to increase ICE's detention capacity, while only approving $10,000,000 for detention alternatives. Alternatives to detention are more cost effective than detention and better serve the interests of the American people while simultaneously promoting national security and fairness. Such individuals can be released on their own recognizance, post bond, wear electronic ankle bracelets, or participate in ICE's Intensive Supervision Appearance Program. As a contrast, the criminal justice system does not routinely imprison everyone facing trial as a method of ensuring that they appear in court.

Detention disregards fundamental American values

Individuals are detained in jails or jail-like conditions that are inhumane. Many detainees are kept in ICE service processing centers, facilities owned and operated by private prison companies, Bureau of Prisons facilities, including federal penitentiaries, and local jails. On any given day, over 60% of all immigration detainees are kept in the more than 200 local prisons and jails and in private contract facilities. A person in immigration detention is not serving out a sentence because of a criminal conviction; yet, the majority of detainees are mixed with the general prison population, including criminals convicted of violent crimes.

Detainees are often subjected to arbitrary punishment, including shackling, solitary confinement, neglect of basic medical and hygienic needs, denial of outdoor recreation, and verbal, physical and even sexual abuse. One expert detailed the meaninglessness of prisoner grievance procedures, the theft of detainee property, and the practice of waking detainees in the middle of the night with the pretext of doing security checks. ⁶

There is no binding uniform detention standards that ensure the humane treatment of detainees.
Immigration detention facilities are largely unregulated. While ICE has issued 36 standards for the treatment of immigration detainees, the Bureau of Prison detention facilities are not subject to the DHS detention standards. Additionally, ICE has been slow in ensuring full compliance by local and county jails. The lack of oversight is made more problematic when detention facilities do not allow or resist giving federal investigators full access, as had been the case during a recent investigation by the U.S. Department of Justice's Office of the Inspector General.

Detention imposes great hardships on detainees and their family and friends.

Detainees and their families almost never know how long their imprisonment will last.
Asylum seekers are often re-traumatized by detention and suffer anxiety, depression, and even suicide.
Women are also more likely than men to be placed in local jails mixed with the general criminal population because DHS has less space reserved for women in their own service processing centers.
Detention means more families will be torn apart. Detainees are placed arbitrarily and many are placed hundreds of miles away from their families. In addition, there are few facilities to hold families together during immigration proceedings. A mother may be placed in county jail while her child is shipped to a facility in another state. In some cases, parents have no idea where their children end up.

Detention greatly impedes detainees' ability to access legal assistance. Detained in remote locations, far from nonprofit legal groups and pro bono law firms, detainees are unable to fully exercise their rights. Whereas the right to counsel is fundamental in our criminal justice system, immigrant detainees have no guarantee of counsel despite the hurdles of language and education that detainees face and the complexity of the immigration laws which have been compared to the IRS Code. Americans believe in a fair and just judicial system. This should also include the immigration system. Given the high stakes involved, assistance of counsel is essential for individuals in detention and deportation proceedings.

Detention is a punishment that does not fit the violation. Due to the retroactive application of the expanded definition of aggravated felony, immigrants, both documented and undocumented, are subject to double jeopardy-they have already paid their dues and yet are subjected to detention. Individuals can be detained for minor crimes committed in their youth. As Representative Bill McCollum put it, "it is wrong to retroactively deport a hard working immigrant for stealing $14.99 worth of baby clothes and to equate shoplifting with murder, rape and armed robbery. This Congress, with the best of intentions, went too far." ⁷

¹Mark Dow, American Gulag, Inside U..S. - Prisons, 6-7. University of California Press (2004).
²Human Rights First, Is this America?, October 2000.
³Statement of Wesley Lee, Acting Director of Detention and Removal Operations at ICE, before the Senate Judiciary Committee. June 7, 2005.
⁴U.S. Chamber of Commerce, http://www.uschamber.com/issues/index/immigration/essentialwork.htm.
⁵Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 125 S.Ct. 716 (2005).
⁶American Gulag, 137.
⁷Congressional Record, Sept. 19, 2000, H7770.