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A Plan to Transform the US Immigrant Detention System

The U.S. immigrant detention system serves two legitimate purposes, to ensure that persons in removal proceedings appear for their hearings and (if so ordered) can be removed and, in rare cases, to protect the public.
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The U.S. immigrant detention system serves two legitimate purposes, to ensure that persons in removal proceedings appear for their hearings and (if so ordered) can be removed and, in rare cases, to protect the public. An important report released on May 11 by the US Conference of Catholic Bishops, Migration and Refugee Services and the Center for Migration Studies, argues that these goals can be accomplished more humanely and at far less cost through a national infrastructure of community-based, supervised release programs. This blog will outline seven of the report's main findings and corresponding recommendations.

First, the report argues that the status quo detention system should be dismantled and transformed because of the devastating human toll it exacts. As the report puts it, the system "engenders despair, divides families, causes asylum-seekers to relive trauma, leads many to forfeit their legal claims and fails to treat immigrants with dignity and respect." It also "contributes to the misconception that immigrants are criminals." In response, the report calls for a substantial investment in alternative to detention (ATD) programs. It argues that each person in the Department of Homeland Security's (DHS's) custody should be placed in the least restrictive program or setting that will reasonably ensure their court appearances.

Second, the report finds that while the Obama administration's detention reform initiative has had notable successes, at the end of the day the administrative reform initiative will not and cannot result, as promised, in a truly civil immigration detention system. Since its inception in 2009, annual detention numbers have risen. In addition, detainees overwhelmingly remain and will remain in prison-like facilities, subject to standards of confinement more appropriate for criminal defendants. If anything, the trend has been toward greater detention in recent months, with the growth of massive family detention centers. In response, the report recommends that:

• pregnant and nursing women, bonafide asylum-seekers, the very ill, the disabled, the elderly and other vulnerable persons never be detained.
• family detention come to an end.
• detention be based on individualized determinations and not be used in a misguided attempt to deter others from coming
• detention only be used when other options cannot reasonably ensure court appearances, and
• persons who need to be detained, be held in non-penal settings, not in prisons or prison-like facilities

Third, immigrant detainees are not criminals. None are serving criminal time, and most lack any criminal record at all. Of the 440,000 persons removed in 2013, about 45 percent were categorized by DHS as "criminal aliens," but nearly one-third of those who were deported as "criminal aliens" had been convicted of an immigration-related offense. In addition, 44 percent of Immigration and Customs Enforcement (ICE) detainees with criminal histories in 2013 were misdemeanants and others fell within an enforcement category that includes multiple misdemeanants. The report proposes a truly civil immigration detention system that reflects the non-criminal population in civil removal proceedings and DHS's legal authorities.

Fourth, the report finds that immigrant detainees are treated worse than criminals in many respects. For example, most are subject to mandatory detention and are not considered for release by a judge based on family or community ties or on whether they represent a flight risk or a danger. In contrast, virtually all criminal defendants receive custody hearings shortly after their detention and can be released subject to conditions designed to ensure their court appearances and to protect the public. Not all criminal defendants are released, of course, but those who are released, appear for their hearings at high rates. In response, the report proposes that Congress eliminate mandatory detention in all but national security and egregious criminal cases.

Fifth, the report finds that in the vast majority of cases, the purposes of immigrant detention can be achieved through more effective, humane, and less costly alternative to detention programs (ATD). In 2014, ICE devoted only five percent of its detention budget to ATD programs. Yet on any given day, it held roughly 34,000 in detention and 22,000 in ATD programs. Thus, it dedicated less than five percent of its budget to roughly 40 percent of its case-load, counting both detainees and those in ATD programs. Moreover, ATD programs cost far less than detention and have been proven highly effective at ensuring court appearances. The report recommends that a substantial investment be made in community-based ATD programs. It also argues that ATD programs should be considered a form of custody and (thus) be open to people who are subject to mandatory detention.

Sixth, the immigration court system is severely underfunded: It receives between one to two percent of the funding received by the immigration enforcement system. As a result, it faces average backlogs of around 18 months in removal cases. Moreover, almost 85 percent of those removed never see the inside of a court, but instead are subject to expedited removal, reinstatement of removal, administrative removal and other summary processes. The report proposes putting all removal cases under the jurisdiction of the immigration court system, expanding funding for this system by an order of magnitude, and providing government-funded legal counsel to indigent persons facing removal.

Seventh, for-profit corporations are administering larger and larger swaths of the detention system -- around 60 percent of detention beds by one estimate. While the detention system should substantially contract, for-profit prisons are aggressively seeking to maximize profits for their shareholders and to expand the market for their services. As the report puts it:

Custody determinations and imprisonment implicate liberty, human flourishing, the integrity of families, and contributory justice. States exist to promote these shared 'goods.' Yet the government has increasingly ceded responsibility for this function to private, for-profit entities whose primary loyalties run to their shareholders, not to the common good.

The report recommends that private corporations should have a more limited role in a transformed system.

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