The moral and legal challenges of U.S. detention

by Anna Alicia Chavez, JSRI Migration Specialist

Every day there are over 32,000 immigrants and refugees held in detention facilities across the country.  It is a heart-wrenching experience to look into the eyes of these detainees.  Their eyes speak volumes of their wretched state of being while locked up behind barbed wire fences.  They are fearful, humiliated, confused, and desperate.  Within the legal system immigrant and refugee detainees are commonly denied due process, and the majority of them cannot afford legal representation. They rarely understand the detention process and have little knowledge of how the judicial system works or what their rights are.  While they do understand that they are unwanted in the U.S., they do not comprehend why they need to be locked up--for months and in some cases for years--like common criminals. The majority of immigrants detained today are victims of a severely broken immigration system.

Currently, Immigration and Customs Enforcement (ICE) operates the nation's largest prison-like system with hundreds of thousands of immigrant detainees imprisoned each year.  This growing population is the result of changes in immigration policy which have given way to increasingly aggressive enforcement measures.  These include widespread immigration raids at home and in the workplaces as well as policies which have resulted in the removal of thousands of legal permanent residents (LPR) and which require that all immigrants, including asylum-seekers, be detained before they are deported.

The passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 became a major catalyst for the social construction of the immigrant as a “criminal alien.”  This legislation, along with the catastrophic national event of 9-11, significantly changed the fate of immigrants, both documented and undocumented.¹

IIRIRA enacted a host of changes in policy that have resulted in the explosive population growth of immigrant detainees and expansion of the US prison system. The new law redefined “illegal immigration” with an expanded list of crimes.²  These crimes, previously considered civil offenses, call for the detention and ultimate deportation of all undocumented immigrants.  IIRIRA also mandates the removal of all persons convicted of an "aggravated felony" which is  defined as an offense that carries a sentence of 12 months or more. This broad definition most often includes misdemeanor offenses under state law.  Furthermore these penalties are now applied retroactively.

Thus, LPRs who have previously been convicted of a crime (for which they had already served a prison sentence for a minimum of one year) are now at risk of being deported even if they had paid for the crime years before 1996.³  Other provisions of the IIRIRA make it impossible for immigrants to appeal their cases and ask for waivers to keep from being deported.  It also requires mandatory detention of immigrants who are believed to be a flight risk, but in fact most often are not. With the passage of the IIRIRA came a new era in the US prison system and soon thereafter, the prisons and jails began to fill up with immigrants. 

In 2009 ICE held 380,000 to 442,000 immigrants in approximately 300 detention facilities scattered throughout the US at an annual cost of $1.7 billion.⁴  Detainees are held in one of three different types of facilities: Service Processing Centers (SPCs), Contract Detention Facilities (CDFs), and Intergovernmental Service Agreement facilities (IGSAs).  Approximately 13 % of immigrant detainees are housed in seven SPCs which are owned and operated by ICE.  Seventeen percent are housed in CDFs which are centers operated by private companies under contract with ICE.  Finally, an estimated 67% are housed pursuant to IGSAs.  They are held in state or county jails that provide bed space for immigration detainees under contracts with state or local governments.⁵ Many of the detention facilities are located in the Gulf South region.⁶

Recent reports have exposed widespread violations of human rights in immigration detention centers across the country.⁷  While the federal government does have the National Detention Standards, these standards are undermined by a lack of uniformity across the detention system.  This is partly due to the fact that IGSAs are not legally bound to adhere to federal detention standards.  Critical provisions within many of these standards explicitly do not apply to IGSAs, where the majority of immigration detainees are held.

Abuses reported include inadequate medical care that has led to the deaths of over one hundred detainees.  Common complaints from detainees are being served rotten food, sleeping in unclean cells, and inadequate recreation time outdoors.  There are also documented cases of sexual abuse by officials in detention centers.  There is often little to no access to legal representation and family visitations due to the remote location of facilitates where the majority of immigrant detainees are being held.  

Another issue of inhumane treatment is the widespread use of excessive transfers of detainees which most often results in the relocation of immigrants to detention centers hundreds of miles away from where they were apprehended.  Excessive transfers place undue stress and hardship on immigrants who are left without access to their families and legal representation.⁸

This past year I was able to accompany a group of law students and others on a monthly visit to one of the detention centers in Louisiana.  Our group is charged with the task of helping the detainees learn about their legal rights.  We also conduct a brief interview to gather information to help us determine if and how we may help them in their legal proceedings. One of the most difficult parts of the visit is witnessing the desperation of the detainees. Their needs are so great, especially the need for pastoral care. This facility is four hours away from the city of New Orleans and few people have the kind of time to commit to the trip on a regular basis.

The increasing population of immigrants in detention centers is a grave issue that weighs heavily on our society.  The economic cost of keeping the system in operation is astronomical as are the social and moral costs due to the growing number of human rights violations.  In 2009 the Department of Homeland Security (DHS) publicly announced that they were working to reform the system. Since then there have been a few changes made, but overall DHS has been very slow to act on such a serious issue. 

Endnotes:     

1. Human Rights Watch (HRW) report, Forced Apart (2007). This report reviews the harsh impact IIRIRA has had on families of immigration. http://www.hrw.org/en/reports/2007/07/16/forced-apart (accessed July 18, 2010). 

2. For a brief summary of   Illegal Immigration Reform and Immigrant Responsibility Act see http://www.visalaw.com/96nov/3nov96.html, (accessed July 18, 2010).  Also see http://trac.syr.edu/tracdhs/aboutLaw/index.html for a current list of the most frequently cited "lead charges" for which immigrants are detained and deported.   

3. HRW report, Costly and Unfair (2010) documents a few case studies of legal permanent residents who have been impacted by IIRIRA, http://www.hrw.org/en/reports/2010/05/06/costly-and-unfair-0  (accessed July 25, 2010).

4. Ibid.

5. National Immigration Law Center, ACLU of Southern California,and Holland & Knight. A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers. http://nilc.org/brokensyspr.html (accessed July 25, 2010).

6. http://www.nytimes.com/interactive/2010/02/23/nyregion/20100223-immig-table.html?scp=1&sq=immigration%20detention%20facilities&st=cse (accessed July 25, 2010).

7. Broken System and Constitution Project report, Recommendations for Reforming our Immigration Detention System and Promoting Access to Counsel (2009), http://www.constitutionproject.org/manage/file/359.pdf (accessed July 16, 2010).

8. HRW, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States (2009), http://www.hrw.org/en/reports/2009/12/02/locked-far-away (accessed July 21, 2010).