Treated like a criminal

August 25, 2009

Rachel Cohen explains that the Obama administration's announced changes in the system of immigration detention don't go nearly far enough.

ACCORDING TO Tom Morton, the practice of mass detention must continue, "but it needs to be done thoughtfully and humanely."

If this sounds like a comment about alleged "enemy combatants" held in the U.S. prison camp at Guantánamo Bay, or even a statement about the millions of men and women filling an overcrowded U.S. prison system, it's not.

Tom Morton heads the U.S. Immigration and Customs Enforcement (ICE) under the Obama administration, and he's referring to a proposed overhaul of the notoriously chaotic and sprawling system of immigration detention.

On August 6, the administration announced a number of reforms to the system, which has an estimated 32,000 people locked up at any given time, with more than 400,000 people passing through its facilities over the course of a year.

The changes center on the creation of oversight offices and boards to review detention management and medical care in detention facilities, with the 23 largest targeted to receive new "managers" to hear complaints. Under the plan, the T. Don Hutto Residential Facility, the most widely known facility to detain whole families, will switch to detaining only female immigration violators.

Protests drew national attention to the practice of family detention at the T. Don Hutto Residential Facility
Protests drew national attention to the practice of family detention at the T. Don Hutto Residential Facility (Matthew Beamesderfer | SW)

The number of immigrants detained by ICE has skyrocketed, so plans to change the system are long overdue--and in particular, the end of family detention at Hutto is very welcome news.

But Department of Homeland Security (DHS) Secretary Janet Napolitano says she expects the number of immigrants detained in the revised system will most likely remain at current levels--or increase.

This should not be a surprise, given other recent changes to immigration policy announced by the administration. These include requiring all federal employers to utilize the E-Verify database to check federal immigration records for employees; auditing more than 600 companies nationwide in a hunt for those with a "pattern" of hiring the undocumented; and, most frighteningly, expanding the 287(g) program, which deputizes local and state law enforcement agencies.

The E-Verify database is widely known to contain significant amounts of faulty information. Among the 137,000 employers currently enrolled in the system, E-Verify checks have falsely denied employment to 19,000 workers in fiscal year 2009 so far.

And the 287(g) program, slated to include 11 new jurisdictions nationwide, extends powers to local police departments responsible for escalating routine traffic stops and investigation of minor infractions into detentions and deportations that separate immigrant families. Only 1.4 percent of immigrants detained by U.S. enforcement agencies are arrested during workplace raids. Most of those detained are swept off their own streets, out of their own homes and communities.

OFFICIALS LIKE Morton claim that expanded enforcement efforts will primarily target immigrants with criminal violations on their records. And overall, Morton says, the aim is to refashion the patchwork of jail and prison cells devoted to immigrant detention across the country into a "truly civil detention system."

Perhaps this is Morton's cynical attempt at a play on words. Immigration violation is, in fact, the only civil (that is, non-criminal) offense for which a person may be detained in the U.S.

International standards require that administrative detention "should not be punitive in nature," as Amnesty International puts it. That would come as a surprise to most, if not all, of the hundreds of thousands who pass through U.S. immigration detention facilities. Frequently, immigrants are held hundred of miles from their homes and families for months or even years before they receive a single hearing about their status.

In fact, most are stowed away in U.S. prisons and jails, frequently held in the same areas as prisoners with criminal convictions. The alternative is immigration detention facilities owned by the DHS, but operated by private, for-profit firms like Corrections Corporation of America, which runs the Hutto facility in Texas.

Reports of poor treatment and dangerously inadequate medical care are rampant. In March 2009, the ACLU reported at least 75 people had died while in U.S. immigration detention due to lack of medical care since 2004. The DHS admits that, in all, 104 people have died in their custody since 2003.

Moreover, promises from ICE and Obama administration officials to target immigrants accused of criminal infractions falsely conflates the mass detention of people accused of immigration violations with the arrest of suspects in criminal cases. Detention Watch Network reports that only half of immigrants behind bars in the U.S. have any criminal records at all, and the vast majority of those with records have already served sentences or paid fines for the infractions.

The reality is that programs like 287(g) work as legal licenses for racial profiling. A coalition of immigrant rights groups issued a statement earlier this month rejecting the Obama administration's approach to immigration policy. As the statement notes:

Preliminary data indicate that in some jurisdictions, the majority of individuals arrested under 287(g) are accused of public nuisance or traffic offenses: driving without a seat belt, driving without a license, broken taillights and similar offences. Such a pattern of arrests suggest that local sheriff's deputies are improperly using their 287(g) powers to rid their counties of immigrants, by making pretextual arrests that are then used to forcefully deport people.

The statement also reports that a "pregnant woman--charged with driving without a license--was forced to give birth while shackled to her bed during labor."

Undocumented immigrants are not the only group held in U.S. immigration detention centers. ICE also detains immigrants with papers, refugees with pending asylum requests, and victims of human trafficking.

The bottom line is that the practice of immigrant detention itself is unjust, not to mention contrary to international legal standards. What's needed is not a kinder, gentler, more organized system, but abolition of immigrant detention altogether.

WHILE ON the campaign trail, Barack Obama struck a chord with many immigrant rights supporters by saying that America needed to move beyond the politics of fear, specifically expressing his determination to end the scapegoating of immigrants.

But his approach thus far consists of curbing the worst excesses of enforcement--like drawing down the number of high-profile workplace raids--while maintaining the bulk of Bush-era policies, which ensures the disruption of immigrant lives and communities.

Earlier this summer, Obama met with a bipartisan group of lawmakers to begin discussions on immigration reform legislation. In a statement following the group's first meeting, he reconfirmed his pledge to support comprehensive immigration reform, while simultaneously announcing a series of measures underway to increase enforcement. The logic suggests that ramping up enforcement now will prepare the way for Democrats to legislate a "path to legalization" at some future date.

This is a recipe for defeat. The Democrats' apparent failure to defend even the half-measure of a "public option" in the debate over health care reform shows the likely fate of a "path to legalization," unless they face more pressure.

On this issue, like so many others, the idea of accepting concessions--in this case, more arrests, detentions and deportations for immigrant workers--before Congress even considers a carrot to match the stick gives away far too ground.

Further Reading

From the archives