The United States’ Unnecessary Immigrant Detention Regime

Would you rather have a hot dog or a lawyer? Would your answer change if you were locked up indefinitely?

The United States currently detains hundreds of thousands of immigrants a year. The ACLU estimates the number of detained immigrants in 2010 at 363,000,[1] and the Esperanza Immigrant Rights Project places the number closer to 400,000.[2]

These immigrants range from individuals caught crossing a border, to individuals already detained in the criminal system, to individuals picked up while waiting for a bus, to individuals pulled over for speeding and asked for proof of their resident status (which is a violation of their rights). Some are predatory sex offenders, others are single mothers. Most are non-violent individuals with no criminal record. Their only commonality is that most of them entered the country without authorization (“most” because there are regularly documented instances of legal residents being swept into detention).

Once detained, they are placed in existing jail and prison facilities, often alongside sentenced criminal offenders. If they are fortunate, they will spend only two weeks in detention: the quickest way out is to immediately concede removability or to have sufficient cash on hand to post bond—an amount set in the thousands of dollars (if posting bond is even an option).

Those who choose to pursue an asylum application or other relief may end up spending years in detention. This is even worse than it sounds. First, there is a good chance the person has done nothing wrong at all. After all, fleeing persecution and seeking asylum in safe host country is a long-recognized civil right, both internationally and domestically. Second, the person may be detained in a county jail for all this time. County jails tend to hold people for short durations. As a result, they may lack exercise facilities or decent food. This author is aware of one asylum applicant who ate little more than hot dogs for over a year while detained in a county jail. Third, while in detention, immigrants are denied a host of basic human rights, such as access to health care, due process, or legal counsel.

Surprising as it may be to some, things were not always this way. Indeed, the United States switched towards a detention-oriented immigration system with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.[3] Prior to IIRIRA, the United States did not utilize detention as a core component of processing unauthorized immigrants.

It seems that some participants in the immigration debate conflate “illegal immigrant” with “dangerous.” If these people were to visit a detained court where immigrants are ordered removed (i.e., deported), they might indeed see some dangerous individuals—those already serving time for violent convictions.

Yet alongside those individuals—who are surprisingly few and far between—they would also see heartbreaking examples of mothers being separated from children, young adults whose parents brought them across the border long before they had any say in the matter, and perhaps respected elderly members of congregations who have supported their communities within the United States for over a dozen years. Are these the types of people we should be detaining for months or years in our jails?

Beyond the (im)morality of this excessive detention, there is an economic cost. Taxpayers pay the government to pay the local jails to house immigrants. As the ACLU reports, the Department of Homeland Security spends an average of $5.5 million every night on detention.[4]

The detention regime currently in place is a dark underbelly to this country’s troubled immigration policy. We all bear the costs through the money spent, jail resources used, families and communities disrupted, and passive sanctioning of a heavy-handed detention-oriented government. Yet none bear higher costs than the individuals who have come here seeking a better life (and perhaps fleeing a more dangerous one elsewhere), and who find themselves picked up at a bus station and locked up, with no access to explanations or lawyers (but plenty of access to hot dogs). As the numbers of detained immigrants continue to rise dramatically, it is long past time to cast a critical eye on the immigrant detention regime in this country.

Joseph C. Hansen
Vice-Chair, ABA International Refugee Law Committee

___________________________________________

[1] American Civil Liberties Union, Immigration Detentionhttp://www.aclu.org/immigrants-rights/detention.

[2] Esperanza Immigrant Rights Project, FAQ on Federal Immigration Detention, http://www.esperanza-la.org/faq-re-federal-immigration-detention.html.

[3] Pub. L. No. 104-208, Division C, 110 Stat. 3009-546 (1996).

[4] Immigrant Detention, supra note 1.

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