Immigration detention in the United States

Immigration detention in the United States began in 1890s at Ellis Island. The administration of President Ronald Reagan further reacted to the mass migration of asylum seekers who arrived in boats from Haiti by establishing a program to interdict (i.e., stop and search certain vessels suspected of transporting undocumented Haitians).^[1] As the number of illegal immigrants who were fleeing economic and political conditions increased, President Bush Sr's administration attempted to find a regional location to handle the influx of refugees and migrants. The United Nations High Commissioner for Refugees (UNHCR) arranged for several countries in the region—Belize, Honduras, Trinidad and Tobago, and Venezuela—to temporarily provide a safe haven for Haitians however the Coast Guard was becoming increasingly overcrowded from holding hundreds of refugees and by November 18, 1991, the United States forcibly returned 538 Haitians to Haiti.^[2] Since the options for safe havens in third countries in the region proved inadequate for the sheer numbers of Haitians fleeing their country, the Coast Guard took them to the U.S. naval base in Guantanamo, Cuba, where they were pre-screened for asylum in the United States.

Mandatory detention was then officially authorized by the federal government in 1996 with the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). From 1996 to 1998, the number of immigrants in detention increased from 8,500 to 16,000^[3] and by 2008 this number increased to more than 30,000.^[4][5] According to the Global Detention Project, the United States possesses the largest immigration detention system in the world.^[6] In 2003, the U.S. Immigration and Customs Enforcement agency (ICE) was created under the Department of Homeland Security. ICE enforces the United States’ immigration and customs laws, uses investigative techniques to apprehend and detain those suspected of violating them, and then deports many of these individuals. The Office of Detention and Removal Operations (DRO), housed within ICE, oversees the detention and deportation of immigrants taken into custody by ICE. Currently, ICE detains immigrants in fifteen detention centers (including privatized facilities), in state and local jails, in juvenile detention centers, and in shelters.^[6]

Several human rights organizations, including Amnesty International and the American Civil Liberties Union (ACLU), and a series of reports made by the New York Times have cited concerns with ICE’s management of these detention centers. Reports refer to instances of human rights abuse and inadequate or unprofessional medical care in these detention facilities. Such reports have also publicized the death of several immigrants in detention and have accused ICE of covering up this information. ICE, in response, has released a list of all the individuals who died in its detention facilities and has publicly stated that the agency provides “state-of-the-art medical care” and “do[es] everything possible to maintain the best quality of life for the detainees in…custody."^[7] In May 2008 the Detainee Basic Medical Care Act of 2008 (H.R. 5950) was introduced to the United States Congress by Representative Zoe Lofgren (D-CA), though no further steps have been taken to enact the bill.

Process of detention and removal

Detained immigrants are given a unique identifying number called an Alien Registration Number ("A-number"), provided they do not already have one by virtue of their legal alien status, and are sent to a county, state, federal, or private prison, where they remain until deported.

Office of Enforcement and Removal Operations

There are four divisions within ICE: Enforcement and Removal Operations (ERO), the Office of Investigations (OI), the Office of Intelligence (Intel), and the Office of International Affairs (OIA), which all work to investigate illegal immigration, enforce immigration laws, and detain and deport offenders of these laws. ERO is the division that deals directly with the detention of immigrants. ERO, under ICE, operates eight detention centers, termed “Service Processing Centers,” in Aguadilla, Puerto Rico; Batavia, New York; El Centro, California; El Paso, Texas; Florence, Arizona; Miami, Florida; Los Fresnos, Texas; and San Pedro, California. ICE also has contracts with seven private companies that run facilities in Aurora, Colorado; Houston, Texas; Laredo, Texas; Seattle, Washington; Elizabeth, New Jersey; Queens, New York; and San Diego, California. Other facilities that house immigrant detainees include juvenile detention centers and shelters. However, the majority of immigrants are detained in state and local jails, which have contracts with ICE. At the end of the 2007 fiscal year the United States’ immigration detention system comprised 961 sites.^[8]

Secure Communities

In 2007, the program Secure Communities was created within ICE to identify criminal aliens, prioritize them based on the severity of the crime they committed, and transform the processes necessary to remove them by increasing efficiency. Secure Communities identifies illegal immigrants with the use of modern technology, notably biometric identification techniques. These were first employed in Houston, Texas in 2008.^[9] As of April 2011, the Secure Communities' biometric sharing capability is being used in 1,210 of 3,181 jurisdictions (state, county, and local jails and prisons) in the USA. Since the program was started in 2008 through March 2011, 140,396 convicted criminal aliens have been booked into ICE custody resulting in 72,445 deportations.^[10] Under the Secure Communities program, the fingerprints of everyone arrested and booked are not only checked against FBI criminal history records, but they are also checked against DHS immigration records. If fingerprints match DHS records, ICE determines if immigration enforcement action is required, considering the immigration status of the alien, the severity of the crime and the alien's criminal history.^[11] ICE then places a detainer on the individual, which is a request that the jail hold that person for up to 48 hours beyond their scheduled release, so that ICE can come to interview or possibly take custody of them.^[12]

The Obama administration has been a big proponent of the program expanding it from 14 jurisdictions under President George Bush to over 1,210 jurisdictions as of March 2011.^[10][13][14] ICE plans to expand the program nationwide by 2013.^[15]

Section 287(g)

The enactment of IIRAIRA in 1996 added onto the Immigration and Nationality Act a clause, titled Section 287(g), which allows state and local law enforcement officials to enforce federal immigration law on the condition that they are trained and monitored by ICE. This agreement in practice permits local and state enforcement officials to arrest and even detain individuals they encounter during their day-to-day duties if they suspect them to be or “identify” them as illegal immigrants. However, many of the individuals picked up by local law enforcement have committed minor offenses, such as driving infractions, and lacked proper identification when stopped. Many civil rights groups have accused Section 287(g) of permitting or causing racial profiling.^[16]

Detention at the border

Often, illegal aliens or individuals lacking legal permission to enter, or remain, in the United States, when apprehended at the U.S. border are detained and placed in removal proceedings in front of an immigration judge. These individuals may include refugees seeking asylum. Under Section 235(b)(2) of the Immigration and Nationality Act, if an individual stopped at the border is believed to be an illegal immigrant or a threat to national security, they are considered “inadmissible” and classified as an “arriving alien.” Individuals detained at the border are only released on a case-to-case basis by the authority of ICE officials.

Mandatory Detention

After being picked by ICE officials, either at the Border, through Secure Communities, or by local officials by way of Section 287(g), an individual can be released on bond if they are not deemed a “threat” to national security. However, many are put in mandatory detention due to criminal history. The enactment of AEDPA and IIRAIRA subjected a wider range of individuals to mandatory detention, including, “non-violent misdemeanor convictions without any jail sentence, and anyone considered a national security or terrorist risk.” In addition, if an individual is already in the U.S., they will be put in mandatory detention if suspected of being a threat to national security or charged with two crimes of “moral turpitude,” an “aggravated felony,” a firearms offense, or a controlled substance violation.^[17] Thus, crimes that did not assign jail time to the individual may subject them to mandatory detention. The ACLU has condemned this practice, saying that it violates due process and is inefficient and costly, since individuals who do not pose a threat to national security but have a criminal record are often the ones subjected to mandatory detention.^[18]

Because the Immigration and Nationality Act and federal court case decisions mandate ICE to carry out a post order custody review of all individuals slated for deportation, when they are held in detention for more than ninety days, to reassess whether or not the individual is a threat to national security or can be released. Thus, such individuals are rarely left in detention for long periods of time without being given notice of release or deportation.

Deportation

Deportation occurs after undocumented residents, are brought before an immigration judge in removal proceedings, and are issued a warrant of removal, or have prior orders of deportation/removal re-instated. Removal proceedings are conducted by the Department of Justice-Executive Office for Immigration Review.

Detention centers

Privatization

Several of the detention centers housing immigrants are operated by private corporations who have contracts with ICE. The Varick Federal Detention Facility in Manhattan is one of these privatized detention centers. The Varick facility is managed by Ahtna Technical Services, Inc., an Alaskan corporation that hires a subcontractor to provide guards, transportation, and equipment used at the center.^[19] The privatized model of detention, which is common within the United States’ prison system, has raised several concerns. Without the government being directly involved, human rights abuses can go unmonitored and be difficult to uncover. The privatization model is based on profit maximization, meaning that more detainees result in more money for the private companies contracted to operate these facilities. While a cost-benefit argument is used to vouch for privatization, an attorney from the ACLU has stated, “It's much more expensive to detain people rather than supervise them to ensure that they appear for their removal proceedings and for deportation if necessary.”^[20] In 2009, ICE proposed the construction of an immigration detention center outside of Los Angeles, which would be operated by a private corporation.^[20]

These governmental contracts with detention facilities have not only gained profit for private companies, but also for the cities and counties that house immigrants in their detention centers. In 2008, ICE spent $55.2 million on detaining immigrants at thirteen jails in California and roughly $57 million in 2009.^[21] For many cities and counties across the country, immigration detention has been a lucrative business that provides much needed revenue. Santa Ana’s Police Chief, Paul Walters, stated, "We treat [the jail] as a business," in reference to a proposed plan to convert rooms at the local jail into a site for detained immigrants.^[21]

Conditions

Several reports have been made citing instances of basic human rights standards being violated in immigration detention centers across the country.^[5] Reports have referred to allegations of abuse and a lack of legal counsel and proper medical care provided to detainees. In addition, immigrant detainees, unlike citizen prisoners, can be transferred between detention facilities without notice. While the United States Constitution provides convicted individuals with legal advice, free of charge if they cannot afford an attorney, immigrants are not guaranteed this right. Instead, they must pay for a lawyer, an option most detained immigrants cannot afford. While immigration courts are required to supply detainees with a list of pro-bono lawyers and agencies that provide legal advice, many of those on the list only represent specific types of immigrants, i.e., asylum seekers or individuals who are not detained. While ICE detention standards state that detainees are provided with access to law libraries, allotted a handbook discussing immigration detention, and given a presentation on their legal rights, these actions are often not carried out in practice.

Several cases of abuse in immigration detention centers have been cited by sources including Amnesty International, the ACLU, the Los Angeles Times and the New York Times. The Los Angeles Times reported on one such instance of abuse, endured by a detainee named Luiz Enrique Guzman at the private Stewart Detention Center in Lumpkin, Georgia, who stated, “the conditions [were] "terrible"…the center staff frequently violated his civil rights” and that “he was beaten while in detention and placed in segregation because he worked to organize detainees.”^[22] The New York Times reported “recurrent complaints include[ing] frigid temperatures, mildew and meals that leave detainees hungry and willing to clean for $1 a day to pay for commissary food” at the Varick Federal Detention Facility in Manhattan.^[23] In addition, individuals in immigration detention centers are often placed in custody with violent offenders, even though illegal immigration is a civil, not criminal, matter.

Immigrants placed in detention centers often go without thorough medical care and many with illnesses or medical conditions aren’t properly monitored by doctors. Mentally disabled detainees are especially vulnerable. If they are transferred, they leave family and doctors without knowledge of their case and are unable to vouch for themselves. According to the New York Times, “their mental incompetence is routinely ignored by immigration judges and deportation officers, who are under pressure to handle rising caseloads and meet government quotas.”^[24] As of January 10, 2010 there have been 107 deaths of immigrants in detention since 2003, when ICE was created. ICE has been accused of covering up many of these deaths, like that of Boubacar Bah, an immigrant from Guinea who was placed in isolation for thirteen hours after suffering from a skull fracture and eventually died in custody.^[25] Another immigrant who died in ICE detention was Hiu Lui Ng, whose fractured spine and cancer had gone undiagnosed. In fact, officials at the Donald W. Wyatt Detention Facility in Rhode Island accused him of lying about his situation and denied him medical care. Francisco Castaneda was an immigrant detained at a facility in California who was similarly denied care – a biopsy for a penile lesion – and ended up dying from cancer.^[26] ICE has responded by publicizing the list of deaths that have occurred in its detention centers,^[27] performing a review of its facilities, and issuing a renewed set of standards to be followed in detention.

Criticisms

Human Rights Criticisms

In addition to their condemnation of the conditions at immigration detention centers, various human rights groups and news sources have also criticized the high costs necessary to sustain ICE’s detention infrastructure.^[5] ICE’s annual budget is roughly 2.5 billion for its detention and deportation duties. President Obama's FY 2017 budget request would reduce the bed quota to 30,913 detention beds: 29,953 adult beds at an average rate of $126.46 per day and 960 family beds at an average rate of $161.36 per day.^[28][29] Through FY 2016, the bed quota remains at 34,000.^[28][29] Furthermore, it has been reported that only a small percentage of the population of detained immigrants have committed crimes. Of the 32,000 immigrants in ICE detention on January 25, 2009, 18,690 had no criminal convictions, “not even for illegal entry.”^[30] Protests by detained immigrants have taken place at several facilities, including the Varick Federal Detention Facility in Manhattan. One hundred detainees at the Varick site, all of whom had no criminal charges, sent a petition in November, 2009 to the New York City Bar Association detailing human rights abuses and substandard conditions and asking for legal help.^[23] On January 19, 2010, detainees at the same site initiated a hunger strike against the conditions of detention. The strike was broken up by a SWAT team that allegedly “used pepper spray and “beat up” some detainees, took many to segregation cells as punishment and transferred about 17 to immigration jails in other states.”^[31]

US Citizens in Immigration Detention

There have been numerous cases ^[32] where US citizens have been held in immigration detention for periods ranging from a few hours to as much as three years.^[33] In some cases ^[34] ICE has actually deported US citizens, including native-born US citizens, to other countries. One notorious case (Mark Lyttle) involved a Puerto-Rico born (and therefore US citizen) man deported to Mexico. Another case involved the deportation of a 14 year old girl, born in Dallas, Texas, and therefore a US citizen, to Colombia.^[35] Although ICE claims to keep no official figures on the percentage of detainees who have a credible claim to US citizenship, the American Civil Liberties Union^[36] estimates this percentage to be between one and four percent. ICE has no legal authority over US citizens.^[37] A facially valid United States Passport (there are some restrictions) is under the law ^[38] conclusive proof of US citizenship. However this statute is frequently either overlooked or ignored by ICE agents, and for this reason it is worth knowing that a false claim of US citizenship is a criminal act under 18 USC 911, and the burden of proof then shifts to ICE.

Alternatives

ICE has acknowledged that its system of immigration detention needs an “overhaul.”^[5] It has issued a report citing steps it plans to take “immediately,” including hiring a medical professional to review medial complaints and establishing an Office of Detention Oversight (ODO), which will be independent from ERO and will report detainees grievances.^[39] Secretary of Homeland Security Janet Napolitano has stated that alternatives to detention will be provided for immigrants who have no criminal convictions as a part of a series of new reforms planned for the country’s immigration detention system. These alternatives include housing immigrants at “converted hotels, residential facilities or place[ing them] on electronic ankle bracelets for monitoring.”^[28]

Pro-detention argument

The Federation for American Immigration Reform (FAIR) has stated, "the criminal alien program is growing," "continued illegal immigration aggravates the problem" of the United States’ detention system, and has called for "greater INS and local government cooperation to identify criminal aliens, additional detention facilities for those in deportation proceedings."^[40] On April 26, 2010 the Palm Beach County Sheriff's Office joined 23 other counties in Florida, in addition to several across the country, in becoming a member of the Secure Communities program and using biometric techniques to "enhance identification and removal of criminal aliens."^[41] Thus, many organizations and regions across the country believe that there is a need for such technologies to track down illegal immigrants who might have committed crimes, detain them, and deport them. Such organizations and law enforcement officials view these immigrants as a threat to national security. In addition, many cities and counties have benefited financially from housing immigration detention centers in their vicinity.

Immigration detention under Obama

The Obama administration has promised to overhaul the current immigration detention system and transform it into one that is less punitive, more centralized, and provides better transparency.^[5] While reforms have been promised, immigrant rights groups have raised concerns that detention centers will not be reprimanded if abuses against detainees are committed. In addition, reports have shown that ICE officials are under pressure to increase detention and deportation quotas to fulfill the agency’s annual goal. A 2010 memo issued by James M. Chaparro, the chief of DRO “congratulated agents for reaching the agency’s goal of “150,000 criminal alien removals” for the year ending Sept. 30” but “instructed agents to pick up the pace of deportations by detaining more noncitizens suspected only of unauthorized residence.”^[42] Janet Napolitano has also publicly endorsed the Secure Communities initiative, which has “rapidly expanded” under the Obama administration, saying that “she hope[s] the program would expand to the whole country by 2013.”^[43]

In late February 2013, ICE announced that it has released "several hundred" detained immigrants from deportation centers ahead of budget cuts; the release of the detained immigrants was praised by Human Rights First, and criticized by Republican Representative Bob Goodlatte.^[44] The White House and the Department of Homeland Security distanced itself from the decision to release the detained immigrants with White House Press Secretary Jay Carney calling those released "low-risk, non-criminal detainees".^[45] The Associated Press reported that the official in charge of immigration enforcement and removal operations resigned due to the release of the detained "illegal immigrants";^[46] ICE insisted that the official retired, and was not connected to the release.^[47] Those released were told they were bonded and released, with ICE officials saying that the released immigrants remain in deportation proceedings.^[48] In March 2013, the Department of Homeland Security announced that the number released was more than 2,000 in the states of Arizona, California, Georgia, and Texas; the department also stated it plans to release an additional 3,000 in March 2013.^[49] The Politico reports that the cost of housing detained immigrants cost about $164 per day per person.^[50]

In a memo made public in 2015, officials issued guidance for ICE personnel directing staff to house transgender immigrants in sex-segregated housing that corresponds with their gender identity.^[51]

See also

• List of detention sites in the United States
• Illegal immigration to the United States
• History of US immigration laws

Notes