Immigrant Detention

The United States holds over 400,000 immigrants each year in detention centers and county jails, and since 2003 Immigration and Customs Enforcement (ICE) has held primary responsibility for investigating immigration issues and detaining and deporting immigrants.
While national debate ensues about comprehensive immigration reform, the conditions and costs of the vast detention network has garnered little attention. Adequate immigration reform must look into the treatment of detained immigrants and how the government can best reform the system to both meet the nation’s needs and treat the detainees humanely.
Understanding Immigrant Detention
It is difficult to make generalizations about the current state of immigrant detention. Mark Dow, author of American Gulag: Inside US Immigration Prisons told the HPR, “The immigration agency itself… is a notoriously secretive agency. They’re taking something that is already set up to be secretive, namely incarcerating people, and the culture of that particular agency, the immigration agency, just makes the system of detention even more opaque.”
Simply figuring out who is detained in these centers is challenging, given that there are several categories of possible detainees. Some are “out of status” immigrants, meaning they arrived in the country legally but have overstayed their visas. Others never had legal status, and some are asylum seekers who had their applications denied. The rest are legal permanent residents who have committed crimes of varying degrees, and all are awaiting deportation.
Ahilan Arulanantham, Deputy Legal Director of the American Civil Liberties Union of Southern California, tells the HPR that reasons for detaining these individuals are often unclear. “My understanding from recent statistics is that roughly half of those detained by ICE have never been convicted of any crime,” Arulanantham states. Reform measures are therefore difficult given the lack of transparency.
Questions of Rights
Non-citizen immigrants, regardless of permanent legal status, are subject to deportation for a large range of crimes, and list is constantly being expanded. Judy Rabinovitz, Deputy Director of the ACLU’s Immigrant Rights Project, tells the HPR, “In 1996, Congress passed a law that said that immigrants who face deportation based on almost on any criminal conduct or conviction have to be mandatorily detained. They often can’t be released on bond.” Even for those qualify for release, costs are often prohibitive.
Meanwhile, being “out of status” is a civil offense, which entitles individuals to detention in non-criminal settings and better treatment. These groups are considered “administrative detainees,” however, they are often held with those serving criminal sentences. Many immigrant detainees are jailed locally, empowered local law enforcement arrests undocumented immigrants without sufficient beds within actual immigrant detention centers.
Many critics raise questions about how these detentions might violate rights. Immigrant detainees are frequently mixed with convicted criminals, and many are handcuffed, forbidden from speaking, and denied communication with the outside world. Some detainees report being confined inside for days at a time and endure verbal and physical abuse. According to a Department of Homeland Security report and many independent groups, medical care is also denied to many detainees. Indeed, in 2008, ICE detailed 74 deaths in detention centers over the course of five years.
Finally, no immigrant detainee has a right to legal counsel during the current process of immigrant deportation. They are often forced to represent themselves in a complex system without clear guidelines. Dow defined the system as, “a parallel justice for non-citizens,” leaving many clamoring for reform.
A Turn for the Worst
Despite calls for change, there is little indication that political leaders will reform current practices. There have been nearly as many deportations, particularly non-criminal deportations, during Obama administration’s first three years than during the entire Bush presidency.
Several recent developments indicate that the detainment and deportation rate will continue increasing. Laws passed in Arizona and Alabama authorize local law enforcement to serve as immigration officers, often employing invasive techniques to identify those who lack legal status.
President Obama has also overseen the rapid expansion of the Secure Communities program, a partnership between ICE, the FBI, and local law enforcement officials. This authorizes investigations into the immigration status of every person put into jail and may create an expedited deportation process.
Fixing the System
There may be some hope for reform: Margaret Rhoad, a researcher at Human Rights Watch, tells the HPR, “There was interest on the part of the Obama administration to address some of the abuses that had come out that were happening in immigration detention, in particular around medical care. It was a really giant step forward for ICE.”
Many recommendations are awaiting implementation, but these reforms have sparked controversy. “The administration’s new detention manual reads more like a hospitality guideline for illegal immigrants,” stated Representative Lamar Smith (R-TX) in Congressional statement in late March. “While we would all like to be upgraded, we don’t have the luxury of billing American taxpayers or making federal law enforcement agents our concierge.”
But while lawmakers are hesitant to introduce changes, reformers have shifted towards the legal system, including a class-action lawsuit in California, Arizona, and New Mexico to secure counsel for mentally handicapped detainees. There is also an increased push for prosecutorial discretion in individual cases, which would allow judges to consider cases for minor offenders with have strong ties to the community, and to make exceptions to mandatory detention and deportation.
Furthermore, Rabinovitz explained, “A lot of these things can be changed without legislation – the way we use detention space, the way we interpret and apply the mandatory detention. We could use alternatives to detention, electronic monitoring. There are other things that can be done instead of locking people up in jail.” Whatever choice legislators make, any change to U.S. immigration policy must consider detention policies. While few agree on the exact steps to be taken, legislators should at least attempt to tackle the issue.