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.

Other posts in this series:

Stories from Detention: Introduction
Rights and Dignity Denied: One Woman's Story
No Human Being is Illegal: Civil Offenses
Inside the Walls: Detention Conditions
In Need of Protection: Vulnerable Populations
There's a Better Way: Alternatives to Detention

Rep. Gutierrez Speaks on NPR

If you haven't had a chance yet, I definitely recommend that you listen to Representative Gutierrez speak on NPR about the need for immigration reform. Yesterday, Rep. Gutierrez discussed the need for family reunification, humane enforcement, legalization, and regulation of future flows of migrant workers -- all components of immigration reform that will be addressed in his upcoming bill.

A few quotes of note:

"Well, I don't think people are buying a kinder, gentler enforcement. When you wake up in the morning without your dad or without your mom and key members of your family and you see the kind of fear and trepidation that exists in the community, there's no way to be kinder and gentler about this."

(In response to the question: Is it possible to have a civilized debate on immigration?) "That's a great question. Is it possible? I think it's necessary. It appears that sometime in February, early March, there'll be a debate on the Senate floor. Is it going to be nasty and mean? Sure, there'll be a lot of people who will use this as a wedge issue once again and bring bigotry and hatred back to the debate. But, you know, what? We have done it before and I think the health care debate is going to help us prepare for this one actually."

Border Communities Seek Solidarity through Student Art Exhibit

With all the enforcement activities in the news (from Sheriff Joe Arpaio's mass arrests and tent cities to higher rates of kidnappings on the border), it is easy to lose perspective of the real daily experiences of people living on the border themselves. Border communities are caught in the middle of an immigration enforcement system that violates human and civil rights, desecrates sacred religious sites, and too often harms the environment.

At FCNL, we advocate for immigration enforcement to be realigned with humanitarian values. Part of this realignment must be a recognition of how border communities are affected by immigration enforcement -- only then can protections be put in place that meet these communities' needs and respect their space.

Take a look at a new traveling exhibit, the Border Project, a mixed media art installation highlighting the perspectives of high school students living along cultural and political present-day borders. The exhibit examines the border of Arizona and Mexico, the Tohono O'odham Indian Reservation and the nearest town of Ajo, through the eyes of students living in these communities.

Border enforcement affects people from diverse backgrounds, with diverse stories and cultures and goals, but each of these communities has a stake in what happens at the border. By finding commonalities -- as this exhibit has done, through art -- it is possible to bring these communities together and create a stronger sense of solidarity.

As the discussion in Washington, DC on comprehensive immigration reform moves forward, it is important to remember that these intersections can be a source of strength rather than a source of tension or disagreement.

In Our Community: Immigration News

From Monday, October 19th to Monday, October 26th, here is your one-stop-shop for summaries of immigration stories in the news. Happy reading!

First of all, let's celebrate, because the Department of Homeland Security (DHS) Appropriations bill just passed with even more money allocated for alternatives to detention than originally requested. The alternatives to detention program received $70 million, $6 million above the initial request. This money will permit Immigration and Customs Enforcement (ICE) to take vulnerable people - asylum-seekers, torture survivors, families, and others - out of immigration detention centers. Alternatives to detention are an effective, cost-efficient, and humane way to treat people going through immigration proceedings.

However, ICE is getting shaken up a bit - this week, a second high-ranking official left the agency. Cree Zischke has just left her job at the ICE Office of Detention Policy and Planning, only a few weeks after her boss, Dora Schriro, also left the agency. Schriro's report on U.S. immigration detention facilities, which was released on October 6, called for significant and immediate reforms to the detention system. It is concerning that Schriro and Zischke have left ICE at this critical moment when these reforms need to be implemented.

Another reason to celebrate: The DHS appropriations bill also included a provision that ends the "widow penalty." Before this bill passed, immigrants married to U.S. citizens faced an awful legal problem: If their U.S. citizen spouse died before they received their green card, they and their children would automatically be deported. Now, the DHS appropriations bill fixes that problem and permits grieving immigrant families to stay in the United States as they continue to petition for a green card.

Faith communities around the country continue to speak out in support of comprehensive immigration reform. In preparation for the introduction of Rep. Luis Gutierrez's (IL) upcoming bill on immigration reform, people of all faiths are speaking out about the need to fix the broken immigration system in order to welcome immigrants into U.S. communities. Police leaders from across the country have also called for fair and humane immigration reform, saying that these reforms would restore public trust in police enforcement and promote public safety.

Recognizing that undocumented children need to be supported in the public education system, the National Education Association and National School Boards Association jointly produced a report offering advice to schools with undocumented students. Undocumented children grew up in the United States and often don't even remember their countries of origin. This important guide will help schools meet the needs of undocumented students who are trying to integrate into U.S. education systems and communities.

The 2010 Census is around the corner, and Senator David Vitter (LA) has introduced an amendment in the Commerce-Justice-Science Appropriations bill that would seriously disrupt the Census process. He's trying to cut off financing to the Census unless it includes a question on whether the respondent is a U.S. citizen or not. Now, questions for the 2010 Census had to be finalized in March 2008, so Sen. Vitter is a little late on this one. However, if the Vitter amendment passes, it would cost U.S. taxpayers billions of dollars. New studies on the questionnaire would have to be run, all the Census forms would have to be reprinted, trainings would have to be redone, and all the technology set up to process the Census would have to be altered. Not only would this cost the United States billions of dollars that could be better used elsewhere, but it would significantly delay the 2010 Census process and discourage immigrants from participating in the Census. Rep. Joe Baca (CA) introduced a bill to counter the Vitter amendment, and the New York Times put out an editorial called "How to Waste Money and Ruin the Census." Latino pastors in California have also come out against the amendment. Please join FCNL and others to encourage your Senators to oppose the Vitter amendment.

No Human Being is Illegal: Civil Offenses

Stories from Detention - Week 2

In conversations on immigration issues, people on many sides of the debate use the term "illegal immigrants." Some choose instead to say "illegal aliens." Even the mainstream media uses these phrases. This choice of language reflects the widely-held notion in the United States that not having proper documentation is a crime.

Get ready for this one: Being an "illegal immigrant" is not a crime.

Violations of immigration laws are civil, not criminal offenses. Let's look at a couple other examples of civil offenses. These include paying for damages in a car accident, going to court for a property dispute, or settling a disagreement about someone's will. These are not criminal offenses, and neither are immigration violations.

What is the punishment for most civil offenses? A fine. What is the punishment for immigrating to the United States without documentation, which is also a civil offense? Arrest, detention, and deportation.

When undocumented immigrants are found to be in violation of immigration laws, they go through a process to see whether they have a right to stay in the United States. Immigrants detained during this process are in non-criminal custody. However, it's easy to get confused on this point, because more than half of the immigrants in detention are held in private prisons or county jails. Some of them are even mixed in with the criminal prison population.

In this video clip, a woman who was detained in an immigration raid on a New Bedford factory gives testimony about her experience. She was separated from her daughter and refused access to a lawyer. Traumatized from the humiliation she experienced, as well as the verbal and physical abuse that she witnessed, she still chooses to share her story.



This woman's experience in the immigration detention system caused her a great deal of pain. Her story raises an important question: What should be the appropriate governmental response to people who enter the U.S. without documentation?

Since most immigration violations are civil rather than criminal offenses, the U.S. government should treat detention as a last resort. Right now, almost all the people accused of violating immigration laws are held in detention centers - no matter what their individual circumstances are. Instead, the Department of Homeland Security should develop community-based alternatives to detention for people, like the woman in this video, who are not a risk to public safety. That way, they could stay together with their families and children as their cases are processed. In addition, Congress should pass a bill on immigration reform that protects people from being treated unfairly in detention.

I will talk in much more detail about these possibilities for reform in the upcoming post, "There's a Better Way: Alternatives to Detention." But these reforms aren't going to happen tomorrow - although they could certainly happen in the next few months. In the meantime, you can help to raise awareness about the immigration detention system.

Language can be a powerful tool. The way that people talk about immigration reflects how they think about immigration. The words that frame these issues actually serve a political purpose - they shape how the discussion on immigration reform advances.

By making a conscious choice not to say "illegal immigrants" and instead to say "undocumented immigrants," you can help to educate your friends, family, and community about how violating immigration laws is not a criminal offense.

Other posts in this series:

Stories from Detention: Introduction
Rights and Dignity Denied: One Woman's Story
Searching for Justice: Mandatory Detention
Inside the Walls: Detention Conditions
In Need of Protection: Vulnerable Populations
There's a Better Way: Alternatives to Detention