By Glenn Leach
The proposed bi-partisan Immigration Reform bill involves border protection, U.S. jobs and the economy as areas where present immigration law does not meet national needs. Yet other concerns illustrate the broken condition of our present collection of immigration laws.
The detention of immigrants and people seeking asylum is one of these. When apprehended by Immigration and Customs Enforcement (ICE), a person’s status requires investigation. U.S. citizens, legal permanent residents, individuals seeking asylum and victims of trafficking have been erroneously apprehended and incarcerated, often for months or much longer. Imprisonment for those individuals appropriately apprehended and awaiting adjudication is often a nightmare.
Under law, ICE officials have the discretion to release those apprehended on bond or other controls pending appearance in Immigration Court for judgment. Incarceration or detention is appropriate when the apprehended person is a known criminal, a threat to public safety, or a significant flight risk. Imprisonment should not be required when an individual is guilty only of illegal presence. Yet for most of those held, no criminal offense or public safety concern exists. Traffic offenses are the crime listed for 20 percent of prisoners. A 2012 report by the National Immigration Forum gives a detailed look at the detention picture, costs of detention and lesser cost alternatives.
Even entire families are incarcerated. At one point, the United States had two family detention facilities, and planned three more. At these, even young children wore scrubs similar to prison uniforms, and their outdoor recreation was regulated as in a prison. While only one family detention center with improved conditions remains open due to protests, the nation still has a network of local jails, contract detention centers and federally operated detention facilities that saw 392,000 detainees in 2010, which would include any children at the family detention centers.
About 64 percent of individuals held are in contract operations or county jails for which the government pays on a per-bed basis. Although ICE has new standards for conditions and conduct in these facilities, they do not always apply to contract operations. In these prison-like centers, detainees can end up in solitary confinement for having food or candy in their cells.
In television portrayals of police procedure we hear, “You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” This does not apply to the above-mentioned detainees. They are not criminal defendants under current law, but are in an administrative judicial system, managed by the U.S. Justice Department, Executive Office for Immigration Review, or EOIR.
EOIR maintains 59 immigration courts, but the wait to appear before an immigration judge can be very long. With the present backlog, a wait of one to two years is not infrequent, although some have been held more than five years, and few as long as 10. In criminal cases, attorneys often successfully seek bond for clients. As few detainees have the money to afford an attorney, four out of five have their fate determined without legal representation, even for explanation of charges. This same lack of representation allows people to be lost in the system and held for extended periods.
Detention is expensive. In House Report 112-492, the Appropriations Committee recommended $2,749,840,000 for ICE Detention and Removal operations — including over $2 million for a mandatory minimum of 34,000 detention beds (daily count of detainees). That is a direct cost paid by taxpayer dollars. ICE is pressured to fill these beds. In February, Congressmen criticized DHS Secretary Janet Napolitano when she indicated that due to sequestration, she would be 3,000 beds short of that goal. An additional, indirect cost is foster care. According to a November 2011 report by the Applied Research Center, “Shattered Families,” more than 5,100 children are known to be in foster care as the result of detention of parents.
Catholic social teaching calls for reform of this detention system.
(Glenn Leach is a volunteer in the Diocese of Davenport’s social action department.)
