Positive Changes to Detention and Access to Justice
Our immigration laws must be humanely and justly enforced. Lutheran Immigration and Refugee Service (LIRS) has long urged Congress to achieve this goal by reducing America’s use of immigration detention, which often involves arbitrary, prolonged loss of liberty and is a barrier to full, fair, and just court proceedings. We also advocate expanding community-based alternatives to detention programs that provide legal, housing, medical, mental health, and other services as needed.
LIRS therefore applauds the Senate for passing S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act on June 27, 2013. The bipartisan bill, passed by a vote of 68-32, contains the following positive changes for migrants held in immigration detention, the operations of detention facilities, and the use of alternatives to detention:
- The rights of individuals in detention would be protected by the creation of time limitations governing the filing of charging documents, decisions about whether or not detention is necessary, and bond hearings before an immigration judge. People in detention for over 90 days would benefit from periodic reviews of their case.
- Compliance with the most recent standards and policies set by the Department of Homeland Security (DHS) would be routinely monitored and contractually required. Deficiencies would trigger financial penalties or discontinuation of the use of a facility by DHS. Evaluations and inspections of facilities would be made public. Oversight would be aided by a requirement that DHS seek non-governmental organizations’ input on specific detention facilities.
- Oversight, transparency and accountability would be improved by placing two agencies, Immigration and Customs Enforcement and Customs and Border Protection, under the jurisdiction of the DHS Ombudsman’s office. The Ombudsman’s office has improved the efficiency and accountability of existing DHS functions already under its jurisdiction.
- Alternatives to detention programs, which the LIRS study Unlocking Liberty found to be efficient, humane, and cost-effective, would be available nationwide and to more people. Case management and individualized assessment of whether and how someone should be detained would be made part of alternatives to detention, and community-based organizations would be clearly authorized to provide these alternatives.
- Solitary confinement would be defined and limited to brief periods under the least restrictive means possible, excluding children and mentally ill individuals from the possibility of being placed in solitary confinement.
- Agency accountability and transparency would be improved through the coordination of databases between ICE, EOIR, CBP, and USCIS and mandatory reports on data related to the use of detention and removal proceedings.
- Sensitive community locations such as hospitals, schools, churches, shelters, would be protected from immigration enforcement actions.
- DHS would be required to abide by humanitarian protections when carrying out deportation proceedings, such as limiting certain nighttime deportations, mandating the return of migrants’ belongings, and reporting on the consequences of certain deportation programs.
LIRS also commends S.744’s safeguards for migrants, refugees and children facing deportation:
- The staff and judges assigned to immigration courts would be expanded to address existing backlogs and insufficient courtroom resources. Judges and staff would receive improved training. All detained people would receive legal orientation that explains their legal rights and decreases length of detention by preparing detainees to represent themselves.
- Immigration judges would have to oversee a person’s consent to be deported from the United States to ensure that such consent is truly voluntary and informed.
- The Department of Justice would appoint and pay for lawyers on behalf of unaccompanied children, people with mental disabilities, and particularly vulnerable individuals in deportation hearings. Providing lawyers would improve fairness and efficiency.
- DHS would establish training for CBP personnel to improve screening of unaccompanied children for cases of child trafficking.
- DHS would establish new standards that ensure children in the custody of CBP have access to adequate mental and medical health care, clothing, hygiene products, and phone calls to family members.
- All unaccompanied children would be transported to ORR within 72 hours of their initial detention and immediately informed of their rights, and child welfare officials would be made available to screen for trafficking victims at certain ports of entry, along with other protections for unaccompanied children.
- Parents apprehended by DHS would be allowed to attend family court proceedings, make family phone calls, and protect their parental rights while detained.
While there are many positive changes in S. 744, the bill falls short as follows:
- Unprecedented increases in U.S. Border Patrol personnel, infrastructure and surveillance technology along the United States-Mexico border without corresponding increases in oversight and accountability measures would likely lead to greater civil and human rights abuses of migrants and U.S. citizens living near or crossing the border and would cost tens of billions of dollars.