An Introduction to Immigration and Detention

Immigration and Customs Enforcement (ICE) released data last week showing that in the months since President Trump signed the “Executive Order: Enhancing Public Safety in the Interior of the United States,” the arrests of undocumented immigrants have increased nearly 40 percent from the same period in 2016. (1) In just a few short months, ICE has arrested 41,000 individuals averaging about 400 arrests per day. (2) The substantial increase is due in part to the executive order authorization of the arrests of all removable individuals whereas previously ICE was only authorized to arrest those convicted of serious crimes. (3)There are also federal mandates that ICE maintain 34,000 immigration detention beds daily.(4)

There are many different ways someone can come into ICE custody. They include workplace raids, inmate detainers (5), traffic stops, or apprehension at the border. (6) After the arrest, an ICE deportation officer makes an initial determination of whether to place the individual in removal proceedings. And if so, how to charge that person. Most commonly individuals are charged with entering without inspection, overstaying nonimmigrant visas, or on criminal grounds. Removal proceedings begin once the ICE deportation officer serves the individual with a Notice to Appear (NTA) which lists the immigration charges. If a person does not have a standing order of removal and does not agree to voluntarily depart they will not immediately be removed to their home country.

There are two grounds for which a non-citizen can be returned to their home country: inadmissibility and deportability. Inadmissibility applies to non-citizens seeking admission into or the right to stay “legally” in the U.S. (7) If an individual is inadmissible they are removable. Deportability applies to individuals already “legally” living in the U.S. (i.e., those on temporary visas, green card holders, etc.)(8) This is an important distinction because inadmissibility and deportability carry different burdens. Non-citizens who entered the U.S. without inspection must prove that they are “clearly and beyond a doubt” entitled to be admitted into the U.S. (9) For deportability, the Department of Homeland Security (DHS) must establish a ground of deportability by “clear and convincing evidence” in the case of a non-citizen who has been admitted to the U.S. (10)

ICE does not take all individuals into custody, sometimes they will let parents with some children return home while their charges are pending. Under the new administration however, this is less and less likely. (11) Approximately half of all immigrants facing removal are detained in over immigration centers across the U.S. (12) One way to be released from ICE custody is to pay bond. Individuals may request a bond hearing from an Immigration Judge (IJ) either through a motion or orally at their Master Calendar Hearing. (13) Bond determinations are at the discretion of the IJ. The IJ will decide whether to release a person on bond and the amount of the bond. There is mandatory detention for anyone with serious criminal history. In Rodriguez v. Robbins, the Ninth Circuit held that individuals in removal proceedings were entitled to an automatic bond hearing after six months of detention where the government has the burden of justifying continued detention. (14) Other individuals are never detained and are able to remain at home while they wait for their cases to be adjudicated.

A person has the right to fight the immigration charges and to present their case in front of an immigration judge in what is called an Individual Hearing (15). Even if the charges are true, an individual may still be eligible for relief (such as asylum, protection under the Convention Against Torture, etc.). Removal proceedings can be very lengthy and some take multiple years to complete. Those who are not or cannot be released on bond must remain in detention until their case is heard. For some, this is their first time in prison-like settings.

Immigration courts were overburdened before the Trump Administration but now more than ever they are struggling to keep up. (16) In March of 2017 there were more than pending 542,000 cases before 301 IJs who frequently hear multiple cases a day. (17) In fact, on average that is almost 800 cases per judge per year. Judges can have up to 1,500 cases on their dockets at a time. (18)

The U.S. has the largest immigration detention center in the world with over 200 detention facilities across the nation. (19) These include ICE-operated facilities, privately operated facilities, jails, and family residential centers (detention centers housing families). Every day the U.S. houses approximately 30,000 detainees each at a cost of about $159/day. (20) In 2014 the detention budgets was roughly $2 billion dollars, or $5 million per day. (21)

After individuals are taken into custody, they are generally housed detention facilities near where they were arrested. (22) Unlike criminal proceedings however, detainees can be transferred to jurisdictions across the U.S. This is because the immigration system does require individuals to be tried in the same jurisdiction where they were arrested. An individual can be apprehended in Arizona and subsequently transferred to the Northwest Detention Center in Tacoma, Washington. Human Rights watch found that between 1999 and 2008, ICE made 1.4 million detainee transfers. (23)

DHS has explained that a transfer policy is necessary to ensure bed space for all detainees. This is particularly the case in high immigrant populated areas liked Los Angeles or New York City. Space in these detention centers is limited and expensive so DHS prefers to move detainees to more remote detention centers with more space and lower costs. Transferring detainees away from their homes, families, and social networks is a tool of control used by ICE to drive immigrants to sign removal papers and leave the country.

Transferring detainees can have a profound impact on the outcome of their cases and presents many obstacles. There is no system to notify a detainee’s family or attorney when they are transferred. Phone calls are expensive so many detainees have no way of notifying anyone of their location and it can take days for families to find their family members. A special report by the American Immigration Counsel found that individuals with hearings in smaller cities experienced difficulties in securing representation because of their location. (24) Both detained and non-detained immigrants in small cities only had representation in about 11 percent of cases. Two of the highest volume detained immigration courts had very few immigration attorneys in the towns where the courts were located. In Lumpkin, Georgia, which heard over 40,000 cases in the six years studied for the report, there were no registered immigration attorneys. (25) Not even one. Transferring detainees while their cases are ongoing is harmful because each jurisdiction has its own applications of laws and can lead to wrongful deportations. Transferring detainees and difficulties in communication also disincentives attorneys from accepting detained cases.

“Detention is intended to help enforce the law, but, in practice, the system breeds cruelty and harm, and squanders taxpayer money.” (26) Immigrant detention is inhumane and degrading. Detainees are held in abysmal conditions. Many people die in immigration detention each year. (27) Detaining immigrants is also unnecessary. Immigrants are kept in custody for civil infractions. Unlike inmates serving time for criminal offenses, immigration detention is not technically a “punishment,” it is meant to insure individuals show up for their proceedings so the U S. Government can remove them to their home countries. It is also extremely expensive (see above).

We cannot compromise on absolute abolition of immigration detention. But as that struggle continues, there are a few smaller things that will help ease the crushing force of the system on immigrants. There should be no mandatory detention for certain types of individuals. Detainees should not be transferred across jurisdictions and away from their families and social networks. Mandate immigration detention standards and listen to the needs of detainees. All detainee calls should be free. If this is not possible, at lease free calls to attorneys and immigration representatives. State and local governments must fund legal services organizations to support the defense of indigent individuals in removal proceedings.

Immigration detention is inhumane and wastes billions of U.S. taxpayer dollars every year. Instead of allowing people to live their lives and work to support their families, the U.S. government detains them for civil infractions. Immigration detention must end now.

Footnotes:

1. Immigration and Customs Enforcement, “ ICE ERO immigration arrests climb nearly 40 percent”, https://www.ice.gov/features/100-days
2. Id .
3. Between the end of January and the end of April, ICE arrested 10,845 people whose only marks on their records were immigration violations.
4. National Immigrant Justice Center, Detention Bed Quota. h ttps://www.immigrantjustice.org/eliminate-detention -bed-quota
5. A detainer is a request filed by ICE, asking the jail or prison either to hold the prisoner or to notify ICE when the prisoner is going to be released. ICE generally receives the immigration status of individuals via databases that police departments, jails, and prisons share with the agency. The maximum time a person can be held on a detainer is 48 hours. If ICE has not taken custody within the 48 hours the person must be released.
6. In addition to conducting searches at the border, U.S. Customs and Border Protection (CBP) also operates immigration “checkpoints” anywhere within 100 miles of the border.
7. INA § 212(a)
8. INA § 237(a)
9. INA § 240(c)(3)(B)
10. INA § 240(c)(3)(A)
11. See e.g. , Andrea Castillo, “Immigrant Arrested by ICE After Dropping Daughter Off at School, Sending Shockwaves Through Neighborhood,” Los Angeles Times, March 3, 2017.
12. U.S. Dep’t of Justice, Executive Office for Immigration Review, FY 2016 Statistical Yearbook, https://www.justice.gov/eoir/page/file/fysb16/download
13. A Master Calendar Hearing is the non-citizen’s first court appearance.
14. Rodriguez v. Robbins , 804 F.3d 1060 (9th Cir. 2015) (Rodriguez III)
15. Immigration judges (IJs) are not a part of ICE. They are part of the U.S. Department of Justice.
16. Bryan Schatz, “ Our Immigration Courts Aren’t Ready to Handle Millions of Deportations,” Mother Jones, March 31, 2017
17. Id.
18. Id.
19. Global Detention Project, “United States Detention Profile,” https://www.globaldetentionproject.org/countries/ americas/united-states
20. Id.
21. National Immigration Forum, The Math of Immigration Detention, August 22, 2013, http://immigrationforum.org /blog/themathofimmigrationdetention
22. Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States , https://www.hrw.org/sites/default/files/reports/us1209webwcover.pdf
23. Id . at 1
24. Ingrid Eagly and Steven Shafer, “Access to Counsel in Immigration Court,” American Immigration Counsel , September 2016, p. 10
25. Id. at 12
26. New York Times Editorial Board, “End Immigration Detention,” New York Times , https://www.nytimes.com/ 2015/05/15/opinion/end-immigration-detention.html
27. See e.g., “ Immigrant detention centers marred by ‘needless deaths’ amid poor care — report,” The Guardian, https://www.theguardian.com/us-news/2017/may/08/immigrant-detention-centers-medical-care-deaths , May 8, 2017; Catherine E. Shoichet “Immigrant Detainee Dies in ICE Custody,” CNN, http://www.cnn.com/2017/ 05/16/us/ice-stewart-detention-center-death/, May 16, 2017.