Immigrant Detention

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Issue Date: February 23, 2007
Immigrant Detention
Changes in Immigrant Detention Policy
Controversy over Detention Center Conditions
Critics Denounce Detention Policies
Supporters Say Detention Needed
Government and Advocates Press Issue
Discussion Questions & Activities
Bibliography
Additional Sources
Contact Information
Key Words and Points
The issue: Is a recent shift toward detaining immigrants a practical way to discourage illegal
immigration? Or is it an abusive practice that infringes on the rights of immigrants?
Critics of immigrant detention say: Recent exposés have shown substandard conditions in
immigrant detention centers. Under the law, illegal immigrants are supposed to be treated
differently than imprisoned criminals, and not held in prison-like environments.
Supporters of immigrant detention say: The previous policy avoided detaining immigrants due to
lack of resources, and was not effective at deterring illegal immigration. While there are abuses in
the system, immigrant detention centers are overall respectful of detainees.
Detention is one of the less-visible aspects of immigration in the U.S. But current estimates suggest that
in 2006, between 26,000 and 27,000 immigrants were held in U.S. detention facilities at any given time.
That represents a significant increase over the previous year, and has prompted concern over the
conditions in which detainees are kept. Some of those detainees were immigrants caught entering the
country illegally, while others were illegal immigrants detained later. Yet another group consisted of
those who entered the country legally but later violated U.S. law in some way.
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Scott Olson/Getty Images
A group of men who attempted to illegally enter the U.S. from
Mexico are processed at a detention center in Nogales, Ariz.
Immigration detention is overseen by the Immigration and Customs Enforcement agency (ICE), a
division of the Homeland Security Department. ICE operates some detention centers itself, and some of
them under contract with private prison companies. Other immigrants are detained by counties across the
U.S., usually in jails. Many detention centers are concentrated along the U.S. border with Mexico, site of
most of the 1.1 million apprehensions made by the Border Patrol in 2006.
Previously, most illegal immigrants who were apprehended were either returned to Mexico (if they were
Mexican) or allowed to remain at large in the U.S. until the date of their court hearings. The latter
arrangement, prompted by a lack of facilities in which to keep the vast numbers of apprehended
immigrants, led to many immigrants simply disappearing before their court dates. In 2006, ICE changed
its policy, detaining the immigrants it would have previously released and speeding the process of their
deportation. That has led to an increase in the number of detained immigrants and, according to the
Homeland Security Department Security, a drop in border apprehensions. But it has also intensified a
controversy, already in existence, over the conditions in immigrant detention centers.
Internal investigations by the Homeland Security Department and the Justice Department, as well as other
investigations and numerous media accounts, have revealed some disturbing facts about at least some of
the facilities. Those include overcrowding, abuse by guards and a lack of timely medical care and access
to legal assistance. In addition, many immigrants remain in such facilities for long periods of time,
sometimes years, while their cases are decided. And in another recent immigration policy development,
authorities have begun to detain immigrant families in special detention centers.
Critics of immigrant detention as it is practiced say that it has gotten out of control. For one thing, they
say, immigrant detainees are supposed to have a different legal status than criminal prisoners--they are
officially known as "administrative detainees" and are outside of the criminal justice system--but in
reality they are treated in much the same way. However, critics say, detained immigrants are also
deprived of legal aid in a way that imprisoned criminals are not. Critics also denounce the use of facilities
such as jails, and of private companies, to handle immigrant detention, saying that a lack of resources and
cost-cutting can lead to poor conditions for detainees.
Opponents are also critical of laws passed in the 1990s that make it easier to detain certain immigrants. It
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is too easy for authorities to detain legal residents and asylum seekers, they charge. And detained
immigrants are often kept in detention for too long, in possible violation of recent Supreme Court rulings,
they say.
Supporters of immigrant detention, meanwhile, say that while abuses should be taken seriously, there is
no evidence that they are as widespread as is sometimes claimed. They argue that it was necessary to end
the practice of releasing apprehended illegal immigrants. Otherwise, such immigrants would simply
continue to take advantage of a hole in the system, they contend.
Proponents add that there are limits to how lenient the government can be in processing immigrants. For
instance, giving asylum seekers too much of an exemption from detention would encourage abuse by
other immigrants, they say, since immigrants would be tempted to claim fears of persecution in order to
avoid being detained. And exempting families encourages immigrants to bring children across borders
with them, critics argue.
Changes in Immigrant Detention Policy
Immigrants are sometimes detained after they have been living in the U.S. for a while, even if they
entered the country legally. They can be detained, and eventually deported, if they commit crimes or are
found to be in violation of immigration law. In the wake of the 1995 bombing of the Alfred P. Murrah
Federal Building in Oklahoma City (which was not carried out by immigrants but which stirred up fears
of terrorists from abroad), Congress passed legislation making it easier for noncitizens who committed
even minor crimes to be detained and deported.
Alex Wong/Getty Images
(Left to right) Immigration and Customs Enforcement Assistant
Secretary Julie Myers, Border Patrol Chief David Aguilar,
Homeland Security Secretary Michael Chertoff, Assistant
Defense Secretary for Homeland Defense Paul McHale and Chief
National Guard Bureau Lt. Gen. Steven Blum take part in a
border security briefing on May 16, 2006.
Terrorist attacks against the U.S. on Sept. 11, 2001, which were carried out by recently arrived
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immigrants, led some to criticize the permissiveness of U.S. immigration policy. In the months and years
after the attacks, thousands of noncitizens with particular backgrounds--almost all of them Muslim, like
the Sept. 11 perpetrators--were detained and eventually deported, often for violations of immigration law.
[See 2005 Immigration Law and Terrorism]
Immigrants are also detained when they have entered the U.S. illegally, usually by crossing over the
border from Mexico. The treatment of illegal border crossers varies depending on their nationality.
Mexicans, who make up the vast majority of illegal immigrants, are returned to Mexico after being
apprehended. The Mexican government, however, does not take back citizens of other countries that have
crossed into the U.S. from its territory.
Until recently, those immigrants, mostly Central and South Americans of various nationalities, were
usually given notice to appear in immigration court for hearings and then released, a policy termed "catch
and release." The immigration system lacked resources, such as space in detention centers, to keep all the
non-Mexican illegal immigrants detained. However, most of the immigrants never showed up for their
court dates--they simply disappeared.
In 2005, the Homeland Security Department announced that it would change its immigrant detention
policy, detaining non-Mexican immigrants whom it would have previously given notice to and released.
That change led to an increase in detained immigrants, which the government sought to accommodate by
increasing the number of detention facilities, as well as the number of beds within them. It also sought to
accommodate more detainees by speeding up their deportation.
The change in policy was part of a broader immigration reform plan on the part of the administration of
President Bush (R). Bush sought to create a temporary guest worker program for immigrants that would
give them the chance to eventually earn citizenship. Tougher enforcement was seen as the other
component of the plan, to discourage immigrants from violating its regulations. Currently, legislation that
would put the guest worker plan into effect is stalled in Congress. [See 2004 Update: Immigration]
Unlike other non-Mexican immigrants, people from El Salvador who enter the country illegally are
exempt from the new detention policy. In 1988, a federal judge in California issued an injunction, known
as the Orantes injunction, to prevent immigration officials from keeping Salvadorans--whose country was
at the time engulfed in a civil war--from seeking asylum in the U.S. As a result, Salvadorans are usually
subjected to catch and release rather than detention.
The Bush administration has sought to do away with the Orantes injunction, arguing that its is not needed
because El Salvador is no longer in a state of civil war. Others argue that gang violence in El Salvador
has become so severe that the injunction is still needed. In the meantime, illegal border crossers are said
to be pretending to be Salvadoran in order to avoid detention and deportation.
The average number of illegal immigrants detained on any given day rose to around 26,500 in 2006, up
from 19,718 in 2005, according to the Congressional Research Service. At the same time, according to
the Homeland Security Department, the number of apprehensions of non-Mexican illegal immigrants fell
to 108,026, from 165,170 in 2005. The department cited tougher immigration measures, such as detaining
non-Mexican border crossers, as the reason for the drop in apprehensions. Some other immigration
experts disputed that claim, however, noting that apprehensions have tended to fluctuate over time.
Controversy over Detention Center Conditions
The increase in the number of detained immigrants has drawn attention to the conditions of the facilities
in which they are held. Media accounts have reported a number of uninviting features of the detention
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centers, such as drab, prison-like conditions, overcrowding and lack of sunlight and stimulation. In
addition, according to reports, detainees are sometimes held for months or even years. [See 2007
Immigrant Detention Center Draws Notice (sidebar)]
Jeremy Eagle
Other complaints have related to legal access. Immigration court is considered a civil, rather than
criminal, court. Therefore immigration detainees do not receive the same legal protections, such as courtappointed lawyers, that criminals do. But although many detainees do not have lawyers, they are entitled
to legal resources, such as access to legal aid by telephone. According to reports, some immigration
detention centers have denied detainees that access.
There have also been reports of abuse by guards. In 2004, news sources reported that guards monitoring
detained immigrants in New Jersey were beating handcuffed detainees, and that guards in another New
Jersey facility were terrorizing detainees with dogs. In 2003, a report by the Justice Department inspector
general revealed abusive behavior at a facility in the New York City borough of Brooklyn where
detainees were kept after the Sept. 11 attacks. Guards there were accused of abuses such as kicking
detainees, twisting their fingers and wrists, and slamming them into walls.
In response to the reports of abuse in New Jersey, the Homeland Security Department disciplined guards
and banned the use of dogs in detention centers. It also ordered an audit by its inspector general's office
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into conditions in the facilities. In January 2007, the inspector general's office released its report on the
five immigrant detention facilities it had surveyed. The report found numerous violations of ICE
standards--detainees were deprived of timely medical care, were kept in unsafe conditions, and were
grouped randomly rather than by risk level. Detainees were also limited in their access to legal assistance
and relatives. And the report found overcrowding, rat infestation, potentially harmful undercooked food
and a lack of basic items such as clean socks and underwear. [See 2007 Report on Immigrant Detention
Centers (sidebar)]
Homeland Security officials denied that there were widespread abuses in the immigrant detention system
and criticized the report for concentrating on a small sample of facilities. Critics of the detention system,
on the other hand, said that the report did not go far enough in detailing abuses. The same month that the
inspector general's office released its report, the American Civil Liberties Union (ACLU) joined a lawsuit
against ICE and the private Corrections Corporation of America (CCA) over conditions at the Otay Mesa
detention center in San Diego, Calif., overseen by the CCA. The suit alleged that the facility was
dangerously overcrowded, posing health and safety problems. The ACLU and its co-plaintiffs argued that
as administrative detainees, the immigrants being kept in Otay Mesa were entitled to better treatment than
that accorded to criminals.
The detention of immigrant families has also provoked controversy. In recent years, authorities have
begun detaining non-Mexican illegal immigrant families with children, who were previously allowed to
live on their own while awaiting court hearings, in two facilities meant specifically for families.
Detainees at one of the two facilities, the T. Don Hutto Residential Center in Taylor, Texas, have
complained of being denied family visits and phone calls, and of a lack of attention to medical and
dietary needs.
In November 2006, the Ibrahims, a Palestinian family that had immigrated to the U.S. in 2001 seeking
asylum, were arrested at their home and detained in the Hutto facility. They were eventually released
when their asylum case was reopened, but their situation brought attention to family detention from the
media and activists opposed to the practice. In January 2007, ICE increased schooling for children in the
Hutto facility to comply with state standards, to four hours per day, from one hour per day previously.
The treatment of immigrants seeking asylum has also drawn criticism. Immigration officials are required
to give special consideration to immigrants (including those who enter the country illegally) who indicate
a fear of being persecuted in their home countries. As part of the package of immigration system reforms
passed by Congress in 1996, asylum seekers have begun to be detained rather than granted freedom while
waiting for their cases to be processed. A February 2007 report by the U.S. Commission on International
Religious Freedom, which had been asked by Congress to examine asylum procedure, found that asylum
seekers were often held in detention for long periods. [See 2000 Political Asylum]
Critics Denounce Detention Policies
Critics of immigrant detention practices say that conditions in detention centers violate basic standards of
decency. They note the numerous reports of overcrowding, lack of medical care and proper sanitation,
and abusive behavior by guards. Being in the country illegally does not justify such deprivations, they
maintain.
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Jim Watson/AFP/Getty Images
Sen. Joseph Lieberman (I, Conn.), chairman of the Senate
Homeland Security Committee, says that he is planning to
introduce legislation requiring the Homeland Security Department
to reform some of its methods of dealing with asylum seekers.
Overall, detained immigrants are kept in conditions similar to prisons--indeed, many of them are held in
actual correctional facilities, critics note. Treating immigrants the way prisoners are treated violates their
status as administrative detainees, opponents charge. "We're hearing a lot about detention," says Mark
Dow, author of American Gulag: Inside U.S. Immigration Prisons (2004). "But when people are
detained, they are incarcerated.... They're stripped of their clothing. They're given inmate uniforms. It's
not that they're treated like prisoners, they are prisoners," he continues.
At the same time, critics say, because detained immigrants are administrative detainees they do not enjoy
many of the same rights as prisoners. The fact that detainees are expected to furnish their own legal
representation means that many go without it and must represent themselves instead, they note. And they
point out that immigration court proceedings tend to have less public transparency than those in criminal
court.
Critics also say that when immigrants are kept in county-run detention facilities such as jails, they may be
supervised by officials who have little knowledge of immigrants' particular needs or do not have the
resources to take care of them properly. In December 2006, for instance, county officials in St. Paul,
Minn., announced that they would no longer be housing detained immigrants in their jail because it was
not equipped to handle them. "There are a lot of issues when you deal with the immigrant population that
we're not geared up to deal with," said county commissioner Rafael Ortega. "There are language issues,
there are cultural issues, there are health issues."
Opponents also question whether the immigrant detention centers run by private companies are the best
choice for dealing with the task. Such companies run half of the federal immigrant detention centers, as
well as many of the county jails being used, they note, with private companies' share of the market
expected to increase. Critics charge that private companies are motivated to keep expenses low, which
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can affect the quality of their facilities. "Standards are violated on a regular basis in order to cut costs,"
says Judith Greene, director of the group Justice Strategies, which monitors the prison system.
Opponents condemn the disruptive effect that detention can have on immigrants' lives. In some cases,
they note, people who have lived in the U.S. for years find themselves suddenly detained and cut off from
their families. And detained immigrants did not always enter the U.S. illegally, they add; legal
immigrants are sometimes detained for committing relatively minor crimes.
The effect of detention can be especially pronounced for immigrants seeking asylum, who have often
come to the U.S. for the purpose of avoiding conditions such as arbitrary imprisonment, critics say. Felice
Gaer of the Commission on International Religious Freedom elaborates:
People seeking asylum are fleeing. Many of them have been detained in their own countries.
Some of them have even been tortured in those situations, and fear that. And yet they're
thrown into a facility that often simply reinforces and brings back all the memories of those
experiences they had that they were fleeing.
Critics also object to the detention of families, particularly in facilities that they denounce as being
similar to prisons. Children should not be kept in such conditions, they say. "It is wrong for the United
States to be detaining immigrant families with young children in a prison-like environment when they
have alternatives," says Rebecca Bernhardt of the Texas branch of the ACLU. "I don't think most
Americans are aware that we're doing this. If they knew what the conditions were like, if they could see
the families, they would find this pretty outrageous."
Critics add that immigrants are often detained for too long a period of time. Many immigrants exist in a
kind of limbo, they say, beyond the reach of legal recourse. The ACLU cites a pair of Supreme Court
rulings--in 2001 and 2005--limiting the amount of time that immigration authorities can detain
immigrants if they cannot find a country to deport them to. "These people have been kept away from their
families, their communities and their lives for years--as many as four years or more--without even a
hearing to determine if their prolonged detention is justified," ACLU staff attorney Ahilan Arulanantham
said of four detained immigrants in California in October 2006.
Supporters Say Detention Needed
Those who support the current policy of immigrant detention concede that there are problems in some
facilities. But they argue that the system's shortcomings are being exaggerated. The recent report by the
Homeland Security Department inspector general, for instance, has to be put in perspective, they say.
Supporters note that the report analyzed only five sites, out of hundreds nationwide. Overall, they say,
immigrant detention facilities uphold high standards. "We're fully committed to maintaining a safe,
secure and humane detention condition, and we invest heavily in the welfare of our detained alien
population," ICE spokesman Marc Raimondi says.
Supporters defend the use of detention as a vital tool for keeping illegal immigration in the U.S. under
control. The old catch and release policy discouraged non-Mexican immigrants who crossed the border
illegally from taking U.S. immigration law seriously, they argue. Because people could simply disappear
before their hearings, the policy created a loophole in the immigration system, they charge. Increases in
the number of non-Mexican illegal immigrants in recent years made changes necessary, they say.
According to Homeland Security Secretary Michael Chertoff:
The gap is closing. The word on the street used to be, if you were a non-Mexican and you
were caught, you would be released and then you were home free.... If you are caught at the
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border, you are going to be detained, and you are going to be detained till you get sent back
home.
Supporters emphasize that illegal immigrants are making the decision to cross into the U.S. The
immigration system should not be blamed for the fact that people choose to behave irresponsibly, they
say. In cases of detained families, parents should refrain from putting their children at risk by entering the
U.S. illegally with them, they add.
Proponents stress the need for workable immigration policies. For example, they note, the Homeland
Security Department acted on some of the Commission on International Religious Freedom's
recommendations for dealing with asylum seekers, such as improving training of immigration personnel
and appointing a senior adviser for refugee and asylum policy. But other recommendations, such as
establishing a separate detention system for immigrants seeking asylum, would not work, they say. That
would be too large an undertaking and would encourage immigrants who were not fleeing persecution to
say that they were, they argue. "We have taken their report seriously," says Assistant Secretary of
Homeland Security Stewart Baker. "But some of their recommendations just weren't practical given the
enormous flood of illegal immigrants that we deal with every day."
Supporters dispute the claim that detaining families in special immigration centers is harmful to them.
Those facilities strive to provide a level of care to immigrant families that they might not receive in other
detention centers, they say. For instance, Gary Mead, assistant director for detention and removal
operations for ICE, says that the Hutto facility in Texas has received only 27 complaints of people who
have been kept there being mistreated.
In addition, supporters argue that employing the policy of catch and release for families but not for other
immigrants encourages people crossing the border illegally to pretend to be families by bringing children
along. "This 'catch and release' policy created a border vulnerability that alien smugglers sought to exploit
by bringing children across the border along with groups of smuggled strangers, attempting to pass the
groups off as family units," states the ICE Web site. "By bringing the children, the smugglers hoped to
avoid detention if captured." Encouraging the involvement of children in border crossing puts them in
danger, proponents add.
Supporters also take exception to the idea that private companies are unable to effectively run immigrant
detention centers. Private companies have reputations to uphold, they say, giving them an incentive to
refrain from cutting corners. And given the number of immigrants coming into the U.S., private
companies provide valuable assistance to the government, they contend.
Government and Advocates Press Issue
The issue of immigrant detention has prompted government action at various levels. The Government
Accountability Office (GAO), for instance, is investigating certain aspects of immigrant detention, such
as whether medical neglect has led to sickness and death. Sen. Joseph Lieberman (I, Conn.), who is
chairman of the Senate Homeland Security Committee, has said that he is planning to introduce
legislation requiring the Homeland Security Department to adopt a number of the recommendations made
by the Commission on International Religious Freedom. And in Texas, state Rep. Eddie Rodriguez (D)
introduced a resolution in February 2007 urging the Homeland Security Department to consider
alternatives to family detention.
Other actions have been initiated from outside the government. The ACLU's lawsuit over the Otay Mesa
facility argues that a 2004 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco requires that
people being held for immigration violations be kept under better conditions than criminal defendants. To
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do otherwise is a violation of the due-process guarantees of the Fifth Amendment to the Constitution, the
ACLU argues. Some observers say that the ACLU suit cuts to the heart of the issue of how immigrants
are treated in detention, and that its outcome could significantly affect how immigrants are held in the
future.
Discussion Questions & Activities
1) Do you think that detention is an appropriate way to control immigration? What are some of the
advantages and disadvantages of the approach?
2) What do you think specifically of the Homeland Security Department's decision to end the "catch and
release" policy and begin detaining non-Mexican illegal immigrants?
3) Do the conditions at immigrant detention facilities uncovered in various reports justify action to
improve them, and if so, what kind of action?
4) What do you think should be done with immigrant families found to be living in the U.S. illegally? Is
it right to detain them?
5) Research a particular immigrant detention facility. Has the facility been in the news for any reason?
How are the conditions at the facility?
Bibliography
"A Look Inside U.S. Immigration Prisons." Democracy Now!, May 4, 2006, www.democracynow.org.
Brand, Madeline. "Interview: Felice Gaer Discusses Treatment of Asylum Seekers in the U.S." Day to
Day, February 8, 2005, www.npr.org.
Constable, Pamela and N.C. Aizenman. "Va. Mother Becomes Symbol on Immigration." Washington
Post, February 15, 2007, B1.
Falkenberg, Lisa. "Critics Call Detainees Facility 'Harmful' For Immigrant Families." Houston Chronicle,
February 7, 2007, www.chron.com.
Hsu, Spencer. "Backlog At Borders, Cracks in the System." Washington Post, May 14, 2006, A1.
Hsu, Spencer and Sylvia Moreno. "Border Policy's Success Strains Resources." Washington Post,
February 2, 2007, A1.
Hsu, Spencer. "Immigration Arrests Down 8% for Year." Washington Post, October 31, 2006, A5.
Kolodner, Meredith. "Immigration Enforcement Benefits Prison Firms." New York Times, July 19, 2006,
www.nytimes.com.
Moran, Greg. "ACLU Rips Detainee Crowding At Facility." San Diego Union-Tribune, January 25,
2007, www.signonsandiego.com.
Nelson, Tim. "County Questions Contract to Jail Illegal Workers." St. Paul Pioneer Press, December 19,
2006, www.twincities.com.
file://C:\##_Berkeley\GEC Course Readings-Issues and Controversies\Immigrant Detention.... 4/4/2009
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Rice, Harvey. "U.S.'s El Salvador Order an Immigration Loophole." Houston Chronicle, July 2, 2006,
www.chron.com.
Swarns, Rachel. "U.S. May Be Mishandling Asylum Seekers, Panel Says." New York Times, February 8,
2007, A17.
Additional Sources
Additional information on immigrant detention can be found in the following sources:
Tichenor, Daniel. Dividing Lines: The Politics of Immigration Control in America. Princeton, N.J.:
Princeton University Press, 2002.
Zolberg, Aristide. Nation by Design: Immigration Policy in the Fashioning of America. Cambridge,
Mass.: Harvard University Press, 2006.
Contact Information
Information on how to contact organizations that are either mentioned in the discussion of immigrant
detention or can provide additional information on the subject is listed below:
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, N.Y. 10004
Telephone: (212) 549-2500
Internet: www.aclu.org
Homeland Security Department
Washington, D.C. 20528
Telephone: (202) 282-8000
Internet: www.dhs.gov
Human Rights First
333 Seventh Avenue, 13th Floor
New York, N.Y. 10001-5108
Telephone: (212) 845-5200
Internet: www.humanrightsfirst.org
Key Words and Points
For further information about the ongoing debate over immigrant detention, search for the following
words and terms in electronic databases and other publications:
Immigrant detainees
Catch and release policy
T. Don Hutto Residential Center
Detained asylum seekers
Immigrant family detention
© 2008 Facts On File News Services
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