Immigration detention in the United States
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Immigration detention in the United States was officially authorized by the federal government in 1996 with the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). From 1996 to 1998, the amount of immigrants in detention increased from 8,500 to [1] and by 2008 this number increased to more than [2]. According to the Global Detention Project, the United States possesses the largest immigration detention system in the [3]. In 2003, the U.S. Immigration and Customs Enforcement agency (ICE) was created under the Department of Homeland Security. ICE enforces the United States’ immigration and customs laws, uses investigative techniques to apprehend and detain those suspected of violating them, and then deports many of these individuals. The Office of Detention and Removal Operations (DRO), housed within ICE, oversees the detention and deportation of immigrants taken into custody by ICE. Currently, ICE detains immigrants in fifteen detention centers (including privatized facilities), in state and local jails, in juvenile detention centers, and in [4].
Several human rights organizations, including Amnesty International and the American Civil Liberties Union (ACLU), and a series of reports made by the New York Times have cited concerns with ICE’s management of these detention centers. Reports have cited instances of human rights abuse and lack of sufficient and professional medical care in these detention facilities. Such reports have also publicized the death of several immigrants in detention and have accused ICE of covering up this information. ICE, in response, has released a list of all the individuals who died in its detention facilities and has publicly stated that the agency provides “state-of-the-art medical care” and “do[es] everything possible to maintain the best quality of life for the detainees in…custody.” In May 2008 the Detainee Basic Medical Care Act of 2008 (H.R. 5950) was introduced to Congress by Representative Zoe Lofgren (D-CA), though no further steps have been taken to enact the bill.
Process of Detention and Removal
Office of Detention and Removal Operations
There are four divisions within ICE: DRO, the Office of Investigations (OI), the Office of Intelligence (Intel), and the Office of International Affairs (OIA), which all work to investigate illegal immigration, enforce immigration laws, and detain and deport offenders of these laws. DRO is the division that deals directly with the detention of immigrants. DRO, under ICE, operates eight detention centers, termed “Service Processing Centers,” in Aguadilla, Puerto Rico, Batavia, New York, El Centro, California, El Paso, Texas, Florence, Arizona, Miami, Florida, Los Fresnos, Texas, and San Pedro, California. ICE also has contracts with seven private companies that run facilities in Aurora, Colorado, Houston, Texas, Laredo, Texas, Seattle, Washington, Elizabeth, New Jersey, Queens, New York, and San Diego, California. Other facilities that house immigrant detainees include juvenile detention centers and shelters. However, the majority of immigrants are detained in state and local jails, which have contracts with ICE. At the end of the 2007 fiscal year the United States’ immigration detention system comprised 961 sites.
Secure Communities
In 2007, the program Secure Communities was created within ICE to “identify” criminal aliens, “prioritize” them based on the severity of the crime they committed, and “transform” the processes necessary to remove them by increasing efficiency. Secure Communities identifies illegal immigrants with the use of modern technology, notably biometric identification techniques. These were first employed in Houston, Texas in 2008 and by April 2010, have been used in 169 jurisdictions across twenty states. When an individual is brought to jail, his or her fingerprints are checked for matches in federal immigration databases and criminal databases. If a match is found, ICE places a hold on the individual, which forces him or her to remain jail. ICE states that it assigns priority to illegal immigrants who have been accused or convicted of “crimes involving national security, homicide, kidnapping, assault, robbery, sex offenses, and narcotics violations carrying sentences of more than one year.” John Morton, of ICE, called Secure Communities “the future of immigration enforcement” since “it focuses our resources on identifying and removing the most serious criminal offenders first and foremost.” However, many human rights groups and immigration lawyers have expressed disapproval of the program, citing concerns that it encourages racial profiling and leads to the apprehension of individuals who have committed only minor offenses. During the first year of Secure Communities, 111,000 immigrants with criminal records have been identified, 100,000 of which have only committed less serious crimes. The Obama administration has publicly supported Secure Communities and has stated that it hopes to expand the program by 2013.
Section 287(g)
The enactment of IIRAIRA in 1996 added onto the Immigration and Nationality Act a clause, titled Section 287(g), which allows state and local law enforcement officials to enforce federal immigration law on the condition that they are trained and monitored by ICE. This agreement in practice permits local and state enforcement officials to arrest and even detain individuals they encounter during their day-to-day duties if they suspect them to be or “identify” them as illegal immigrants. However, many of the individuals picked up by local law enforcement have committed minor offenses, such as driving infractions, and lacked proper identification when stopped. Many civil rights groups have accused Section 287(g) of permitting or causing racial profiling.
Detention at the Border
Often, immigrants or individuals lacking documentation arriving at the United States border are detained for extended periods of time while ICE decides if they are “admissible” or should be deported. These individuals may include refugees seeking asylum. Under Section 235(b)(2) of the Immigration and Nationality Act, if an individual stopped at the border is believed to be an illegal immigrant or a threat to national security, they are considered “inadmissible” and classified as an “arriving alien.” Individuals detained at the border are only released on a case-to-case basis by the authority of ICE officials.
Mandatory and Indefinite Detention
After being picked by ICE officials, either at the Border, through Secure Communities, or by local officials by way of Section 287(g), an individual can be released on bond if they are not deemed a “threat” to national security. However, many are put in mandatory detention and are disallowed any custody review of their eventual deportation hearings. The enactment of AEDPA and IIRAIRA subjected a wider range of individuals to mandatory detention, including, “non-violent misdemeanor convictions without any jail sentence, and anyone considered a national security or terrorist risk.” In addition, if an individual is already in the U.S., they will be put in mandatory detention if suspected of being a threat to national security or charged with two crimes of “moral turpitude,” an “aggravated felony,” a firearms offense, or a controlled substance violation. Thus, crimes that did not assign jail time to the individual may subject them to mandatory detention. The ACLU has condemned this practice, saying that it violates due process and is inefficient and costly, since individuals who do not pose a threat to national security but have a criminal record are often the ones subjected to mandatory detention.
Indefinite detention occurs when immigrants awaiting deportation are detained indefinitely because they are refused repatriation by their home countries or by the United States in the event that it does not have diplomatic relations with their home country. While the Immigration and Nationality Act mandates ICE to carry out a custody review if an individual slated for deportation is held in detention for more than ninety days to reassess whether or not the individual is a threat to national security or can be released, these reviews often do not take place. Thus, such individuals are frequently left in detention for long periods of time without being given notice of release or deportation.
Deportation
Deportation occurs after immigrants, who have been detained for a period of time, are brought before an immigration judge in removal proceedings. These are conducted by the Executive Office for Immigration Review.
Detention Centers
Privatization
Several of the detention centers housing immigrants are operated by private corporations who have contracts with ICE. The Varick Federal Detention Facility in Manhattan is one of these privatized detention centers. The Varick facility is managed by Ahtna Technical Services, Inc., an Alaskan corporation that hires a subcontractor to provide guards, transportation, and equipment used at the center. The privatized model of detention, which is common within the United States’ prison system, has raised several concerns. Without the government being directly involved, human rights abuses can go unmonitored and be difficult to uncover. The privatization model is based on profit maximization, meaning that more detainees result in more money for the private companies contracted to operate these facilities. While a cost-benefit argument is used to vouch for privatization, an attorney from the ACLU has stated, “It's much more expensive to detain people rather than supervise them to ensure that they appear for their removal proceedings and for deportation if necessary.” In 2009, ICE proposed the construction of an immigration detention center outside of Los Angeles, which would be operated by a private corporation.
These governmental contracts with detention facilities have not only gained profit for private companies, but also for the cities and counties that house immigrants in their detention centers. In 2008, ICE spent $55.2 million on detaining immigrants at thirteen jails in California and roughly $57 million in 2009. For many cities and counties across the country, immigration detention has been a lucrative business that provides much needed revenue. Santa Ana’s Police Chief, Paul Walters, stated, "We treat [the jail] as a business," in reference to a proposed plan to convert rooms at the local jail into a site for detained immigrants.
Conditions
Several reports have been made citing instances of basic human rights standards being violated in immigration detention centers across the country. Reports have referred to allegations of abuse and a lack of legal counsel and proper medical care provided to detainees. In addition, immigrant detainees, unlike citizen prisoners, can be transferred between detention facilities without notice. While the United States Constitution provides convicted individuals with legal advice, free of charge if they cannot afford an attorney, immigrants are not guaranteed this right. Instead, they must pay for a lawyer, an option most detained immigrants cannot afford. While immigration courts are required to supply detainees with a list of pro-bono lawyers and agencies that provide legal advice, many of those on the list only represent specific types of immigrants, i.e., asylum seekers or individuals who are not detained. While ICE detention standards state that detainees are provided with access to law libraries, allotted a handbook discussing immigration detention, and given a presentation on their legal rights, these actions are often not carried out in practice.
Several cases of abuse in immigration detention centers have been cited by sources including Amnesty International, the ACLU, the Los Angeles Times and the New York Times. The Los Angeles Times reported on one such instance of abuse, endured by a detainee named Luiz Enrique Guzman, who stated, “the conditions [were] "terrible"…the center staff frequently violated his civil rights” and that “he was beaten while in detention and placed in segregation because he worked to organize detainees.” The New York Times reported “recurrent complaints include[ing] frigid temperatures, mildew and meals that leave detainees hungry and willing to clean for $1 a day to pay for commissary food” at the Varick Federal Detention Facility in Manhattan. In addition, individuals in immigration detention centers are often placed in custody with violent offenders, even though illegal immigration is a civil, not criminal, matter.
Immigrants placed in detention centers often go without thorough medical care and many with illnesses or medical conditions aren’t properly monitored by doctors. Mentally disabled detainees are especially vulnerable. If they are transferred, they are leave family and doctors with knowledge of their case and are unable to vouch for themselves. According to the New York Times, “their mental incompetence is routinely ignored by immigration judges and deportation officers, who are under pressure to handle rising caseloads and meet government quotas.” As of January, 10, 2010 there have been 107 deaths of immigrants in detention since 2003, when ICE was created. ICE has been accused of covering up many of these deaths, like that of Boubacar Bah, an immigrant from Guinea who was placed in isolation for thirteen hours after suffering from a skull fracture and eventually died in custody. Another immigrant who died in ICE detention was Hiu Lui Ng, who’s fractured spine and cancer had gone undiagnosed. In fact, officials at the Donald W. Wyatt Detention Facility in Rhode Island accused him of lying about his situation and denied him medical care. Francisco Castaneda was an immigrant detained at a facility in California who was similarly denied care – a biopsy for a penile lesion – and ended up dying from cancer. ICE has responded by publicizing the list of deaths that have occurred in its detention centers, performing a review of its facilities, and issuing a renewed set of standards to be followed in detention.
Criticisms
In addition to the condemnation of the conditions at immigration detention centers by various human rights groups and news sources, many[who?] have criticized the high costs necessary to sustain ICE’s detention infrastructure. ICE’s annual budget is roughly 2.5 billion for its detention and deportation duties. The daily cost for holding an individual at an immigration detention facility is roughly $100 per person. Furthermore, it has been reported that only a small percentage of the population of detained immigrants have committed crimes. Of the 32,000 immigrants in ICE detention on January 25, 2009, 18,690 had no criminal convictions, “not even for illegal entry.” Protests by detained immigrants have taken place at several facilities, including the Varick Federal Detention Facility in Manhattan. One hundred detainees at the Varick site, all of whom had no criminal charges, sent a petition in November, 2009 to the New York City Bar Association detailing human rights abuses and substandard conditions and asking for legal help. On January 19, 2010, detainees at the same site initiated a hunger strike against the conditions of detention. The strike was broken up by a SWAT team that allegedly “used pepper spray and “beat up” some detainees, took many to segregation cells as punishment and transferred about 17 to immigration jails in other states.”
Alternatives
ICE has acknowledged that its system of immigration detention needs an “overhaul.” It has issued a report citing steps it plans to take “immediately,” including hiring a medical professional to review medial complaints and establishing an Office of Detention Oversight (ODO), which will be independent from DRO and will report detainees grievances. Secretary of Homeland Security Janet Napolitano has stated that alternatives to detention will be provided for immigrants who have no criminal convictions as a part of a series of new reforms planned for the country’s immigration detention system. These alternatives include housing immigrants at “converted hotels, residential facilities or place[ing them] on electronic ankle bracelets for monitoring.”
Pro-detention Argument
The Federation for American Immigration Reform (FAIR) has stated, “the criminal alien program is growing,” “continued illegal immigration aggravates the problem” of the United States’ detention system, and has called for “greater INS and local government cooperation to identify criminal aliens, additional detention facilities for those in deportation proceedings.” On April 26, 2010 the Palm Beach County Sheriff’s Office joined twenty-three other counties in Florida, in addition to several across the country, in becoming a member of the Secure Communities program and using biometric techniques to “enhance identification and removal of criminal aliens.” Thus, many organizations and regions across the country believe that there is a need for such technologies to track down illegal immigrants who might have committed crimes, detain them, and deport them. Such organizations and law enforcement officials view these immigrants as a threat to national security. In addition, many cities and counties have benefited financially from housing immigration detention centers in their vicinity.
Immigration Detention under Obama
The Obama Administration has promised to overhaul the current immigration detention system and transform it into one that is more centralized and provides better transparency. While reforms have been promised, immigrant rights groups have raised concerns that detention centers will not be reprimanded if abuses against detainees are committed. In addition, reports have shown that ICE officials are under pressure to increase detention and deportation quotas to fulfill the agency’s annual goal. A 2010 memo issued by James M. Chaparro, the chief of DRO “congratulated agents for reaching the agency’s goal of “150,000 criminal alien removals” for the year ending Sept. 30” but “instructed agents to pick up the pace of deportations by detaining more noncitizens suspected only of unauthorized residence.”47 Janet Napolitano has also publicly endorsed the Secure Communities initiative, which has “rapidly expanded” under the Obama Administration, saying that “she hope[s] the program would expand to the whole country by 2013.”
Notes
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