For more information, please contact
Madhu Grewal, [email protected]
Immigration Detention Backgrounder
Immigration laws must be based on the rights of due process and a fair day in court, liberty of the person and
freedom from arbitrary detention, the protection of refugees, and the unity of the family. Unfortunately, our
immigration detention and deportation system runs contrary to these fundamental values.
What is immigration detention?
Immigrations and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), operates
a sprawling system of over 250 immigration detention facilities, costing taxpayers over $2 billion annually. ICE
employees do not run most of these facilities; they are either jails operated by county authorities or detention
centers operated by private prison corporations. Although detention is intended to be civil detention for
immigrants while they adjudicate their cases in immigration court, detention is punitive, lacks accountability and
transparency, and has a well-documented history of human rights abuses.
Have we always detained nearly half a million immigrants each year?
No. The current level of detention – 478,000 for Fiscal Year 20121 – is at an all-time high. In 1954, the
Immigration and Naturalization Service (INS) announced it was abandoning the policy of detention, except in rare
cases.2 The practice was to avoid needless confinement and release undocumented immigrants while their
administrative proceedings were pending. However, since the 1980s, the U.S. has become increasingly reliant on
immigration detention. In 1996, sweeping changes to immigration laws curbed the due process rights of
immigrants and drastically increased the number of people subject to mandatory detention and deportation.
Mandatory detention – a policy of detaining immigrants without the right to a hearing before a judge – has
resulted in the unnecessary detention of many people at a high social and economic cost. In the last decade,
detention has expanded at an unprecedented rate as DHS escalated its enforcement efforts and Congress has
continued authorizing funding for more detention beds to meet an arbitrary quota of 34,000 immigrants per day.
Who is detained? For how long?
At any given time, ICE keeps approximately 34,000 people in detention. Detained immigrants include long-time
lawful permanent residents with extensive family, employment, and community ties in the U.S. ICE also detains
mentally ill individuals, pregnant women, long-term residents, the elderly, and parents of U.S. citizen children.
Asylum-seekers, torture survivors, victims of trafficking and other vulnerable groups are also detained. Detention
further aggravates their isolation, depression, and other mental health problems associated with past trauma.
Immigrants can be held for months, years, and some for a decade or more. 3 Some immigrants are kept in
prolonged detention because their deportation orders cannot be carried out.4
Detention runs contrary to our values of basic dignity, due process, and human rights. 5
Detention and deportation breaks apart families and communities. Frequent and distant transfers make it
difficult for spouses to see each other or for children to see their parents. In many cases, “contact” visits are
not allowed and family members are only allowed to see their loved ones via video monitor. Many detained
immigrants are held in remote locations; nearly 40% of all detention beds are located more than 60 miles
from an urban center, isolating immigrants from their families, communities, and legal aid. 6
Detention prohibits due process and an individual’s ability to properly argue his/her immigration case.
Whereas the right to counsel is fundamental in our criminal justice system, immigrants have no guarantee of
counsel despite the hurdles of language and education that they face and the complexity of the immigration
laws, which have been compared to the IRS Code. Time and resources in a law library are limited, at best, and
1
Annual Report, DHS Enforcement Actions: 2012 (Dec. 2013), available at http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_ 2012_1.pdf
Mark Dow, American Gulag, Inside U.S. Immigration Prisons, 6-7. University of California Press (2004).
3
Statement of Wesley Lee, Acting Director of Detention and Removal Operations at ICE, before the Senate Judiciary Committee. June 7, 2005.
4
Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 125 S.Ct. 716 (2005).
5
Unless otherwise stated, the examples in this section can be in an extensive report conducted by Detention Watch Network: Expose & Close, Nov. 2013, available at
http://www.detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/ expose_and_close_one_year_later.pdf.
6
Human Rights First, Jails & Jumpsuits. 2011, available at http://www.humanrightsfirst.org/wp-content/uploads/pdf/HRF-Jails-and-Jumpsuits-report.pdf.
2
1
For more information, please contact
Madhu Grewal, [email protected]
may not be available in the necessary languages. Frequent transfers and isolation enhance the difficulty of
securing and maintaining competent legal representation.
Detention is psychologically damaging due to the horrific conditions in facilities. ICE facilities are not in
compliance with the most up-to-date standards; facilities operate on standards from 2000, 2008, or 2011.
Nearly 10,000 immigrants are held in facilities that operate on standards from 2000. Detained immigrants are
often subjected to arbitrary punishment and retaliation, including shackling, solitary confinement, neglect of
basic medical and hygienic needs, denial of outdoor recreation and phone time to call their attorneys, and
verbal, physical and even sexual abuse. Studies conducted by the bipartisan Commission on International
Religious Freedom, New York University’s Bellevue Program and Physicians for Human Rights have
demonstrated that detention itself poses a serious threat to the psychological health of the detainees.
ICE should not use alternatives to detention (ATDs) to place countless immigrants under such programs
when they would be eligible for release. ATDs, which include dehumanizing ankle bracelets, should not be
imposed upon individuals who are not subject to detention in the first place. Moreover, ICE should utilize
alternatives that include case management and community support. Alternatives to detention can be as little
as a few cents to a few dollars a day compared to nearly $160 per day in a detention facility. However, the
burden should be on the United States government, not the people whose liberty it seeks to restrict, to
demonstrate the necessity of the restriction level the government seeks to utilize.
Did you know?
144 immigrants have died in detention since 2003.7
ICE operates on a detention bed quota, which costs taxpayers over $2 billion each year and nearly $5.5
million per day.8 Through Congressional appropriations, ICE’s funding is contingent on a requirement to
maintain 34,000 detention beds each day,9 forcing ICE to detain individuals who could otherwise be eligible for
release. No other law enforcement agency operates on a quota system.
Nearly 60% of detention beds are in facilities run by private prison corporations, which rake in profits from
the incarceration of immigrants.
70% of detained immigrants are subject to mandatory detention,10 which requires their incarceration without
the right to a bond hearing before an immigration judge and strips them of the right to due process.
Individuals can be mandatorily detained and deported even for minor crimes committed in their youth. As
Representative 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.” 11
84% of detained immigrants go through the system without a lawyer.12 Unlike in the criminal justice system,
immigrants are not provided lawyers to help navigate our complicated immigration system. A New York study
found that non-detained immigrants with counsel had successful outcomes 74% of the time; on the other
hand, detained immigrants without counsel prevailed a mere 3% of the time.13
There are no binding, uniform detention standards to ensure humane treatment. Detention standards are
not codified, meaning standards do not have the force of law and the violation of a standard does not confer
a cause of action in court. Finally, facilities are not subject to independent oversight.
7
Information provided by ICE.
National Immigration Forum. The Math of Immigration Detention. Aug. 2013, available at http://www.immigrationforum.org/images/uploads/MathofImmigrationDetention.pdf.
9
U.S. House of Representatives. Congress 113th Session. H.R. 3547, Consolidated Appropriations Act of 2014 at 247, available at http://www.gpo.gov/fdsys/pkg/BILLS-113hr3547enr/pdf/BILLS113hr3547enr.pdf (ICE “shall maintain a level of not less than 34,000 detention beds”).
10
Information provided by ICE.
11
Congressional Record, Sept. 19, 2000, H7770.
12
Nina Siulc, et. al., Vera Inst. of Justice, Improving Efficiency & Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, 1 (2008), available at
http://www.vera.org/sites/default/files/resources/downloads/LOP_Evaluation_May2008_final.pdf
13
N.Y. Immigrant Representation Study Report, Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (pt. 1), 33 Cardozo L. Rev. 357 (Dec. 2011), available at
http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf
8
2