Friday, October 30, 2009

Searching for Justice: Mandatory Detention

Stories from Detention - Week 3

In the last post in this series, we discussed how immigration violations are civil, not criminal offenses. If that is so, then how has it been possible for the number of immigrant detainees to skyrocket in recent years?

Recent immigration laws have deprived immigrants of their dignity and their rights. By denying immigrants the right to a fair day in court, these laws have greatly expanded the number of people detained and deported each year.

In 1996, laws on expedited removal and mandatory detention created some of the most severe failures to uphold justice within the U.S. immigration system. Expedited removal is a procedure that allows immigration agencies to deport certain immigrants without a hearing in front of an independent court. Detention is mandatory during the time it takes to deport these people from the United States.

It is common knowledge that the U.S. government was set up as a system of checks and balances - without the judicial branch, that system would be severely weakened. However, the U.S. immigration system currently lacks this same measure of justice.

Before we get into the history of how expedited removal and mandatory detention were put into place and which immigrant populations are affected by these policies, let's take a look at how this denial of justice affected Warren Joseph, an immigrant from Trinidad. As Joseph's story will demonstrate, mandatory detention can last months, or even years.

Joseph was fortunate that his case was processed and he was eventually able to reunite with his son and remain in the United States. Many are not as fortunate - they are deported, without ever having had an opportunity to argue their case before a judge.

So, who is affected by expedited removal and mandatory detention?

As Joseph's story indicates, immigrants who have been convicted of a crime are subject to mandatory detention. The offenses for which immigrants are detained and deported include minor misdemeanors, such as shoplifting or petty drug possession. These minor misdemeanors may not have required any jail time, but they are still grounds for deportation under current immigration laws.

This policy affects all non-citizens, including green card holders with strong ties to the United States who have previously been convicted of a crime, even if the conviction is for a minor offense and even if - like Joseph - they have already paid their debt to society. They are punished retroactively for crimes they committed years, even decades ago, even for crimes that were not deportable offenses at the time that they were committed.

Mandatory detention also applies to arriving immigrants who do not have the proper documentation and who are unable to establish a "credible fear" of returning to their country of origin.

As I mentioned earlier, immigration laws were passed in 1996 that expanded the scope of mandatory detention and expedited removal. At the same time, the budget for the Department of Homeland Security increased significantly. As a result, the number of immigrant detainees has increased dramatically in the past fifteen years. According to the Detention Watch Network, the U.S. detained approximately 95,000 individuals in 2001. By 2007, over 300,000 people were being detained annually under immigration laws. By the end of 2009, that number will have increased yet again to more than 440,000 immigrant detainees.

Mandatory detention and expedited removal, policies that affect thousands of people's lives each year, are actually illegal under international law because they do not grant detainees a fair day in court. According to the United Nations Human Rights Committee and the United Nations Working Group on Arbitrary Detention, detention is arbitrary if it fails to consider individuals' personal circumstances. Mandatory detention therefore violates international law. The United States has signed onto international treaties, including the Universal Declaration of Human Rights, which prohibit arbitrary detention.

The vast majority of people who are subject to mandatory detention and expedited removal do not have access to a lawyer. Overall, 84% of immigrant detainees do not have legal representation. In addition, mandatory detention does not allow detainees to appear before an impartial judge. People are routinely deported under mandatory detention without any consideration of their personal situation, such as whether they have young children in the United States or whether they would be in danger if returned to their country of origin.

Here at FCNL, we maintain that mandatory detention and expedited removal must be ended, in order to restore justice to the U.S. immigration system.

In order to restore fairness to the immigration system, we urge Congress to pass a bill that ends these fundamentally unjust policies. Such a bill should give immigration judges discretion to make case-by-case decisions on whether individuals should be detained. Alternatives to detention should be put into place on a national level. In addition, it is important to push back against bills that would expand the criteria for mandatory detention even further.

We also urge the Department of Homeland Security to take immediate steps to ensure that immigrant detainees have access to lawyers and law libraries. Detainees currently face huge obstacles in finding legal assistance because they are held in isolated areas, often without interpreter or translator services, and have limited access to telephones. The next post in this series will address our concerns regarding detention conditions in greater detail.

Justice is denied to immigrants under the mandatory detention and expedited removal policies. There is no place for this kind of injustice in a fair immigration system.

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