Immigration Detention

Do not forget to show hospitality to strangers, for by so doing some people have shown hospitality to angels without knowing it. Continue to remember those in prison as if you were together with them in prison, and those who are mistreated as if you yourselves were suffering.

-Hebrews 13:2-3

Background

LIRS is a national leader in advocating for the reform of the U.S. immigration detention system and implementing humane and cost-effective alternatives to detention. Non-citizens apprehended by Immigration and Customs Enforcement (ICE), within the Department of Homeland Security (DHS), are often placed into immigration detention.  Despite the term “detention,” immigration detention facilities are jails or facilities with jail-like settings.  Immigrants are often held in detention during their entire immigration court proceedings, which can take several months or years.  ICE operates approximately 250 detention facilities nationwide. These facilities are operated through partnerships with state and county jails, through contracts with private companies, and by ICE itself.

The number of migrants detained by immigration officials has skyrocketed in the last two decades.  In Fiscal Year (FY) 1996, the government had a daily detention capacity of 8,279 beds.  Today, due to a bed quota imposed by Congress, DHS is required to maintain 34,000 daily detention beds for immigration purposes.  In FY 2013, ICE detained nearly 441,000 people.  Any non-citizen, including green card holders, asylum-seekers, trafficking victims, and torture survivors, is at risk of detention.

Family Detention: Summer 2014 to the present

In response to the growing numbers of families and children fleeing danger in Central America in the summer of 2014, the Obama Administration exponentially expanded the use of family detention.  The Department of Homeland Security increased capacity to detain families from 96 beds in just one facility in Berks County, Pennsylvania to an anticipated 3,700 spaces in three separate facilities by the end of 2015.  The explicitly stated purpose for this expansion was to deter other families from Central America from coming to the United States.  The first detention facility opened as part of this expansion was a 700-bed facility located in Artesia, New Mexico that housed mothers, young children and babies. The Artesia facility opened in June 2014 and closed in December 2014 due to credible concerns about the poor treatment of families held there. Since summer 2014, the Obama administration opened two additional family detention facilities in Karnes County, Texas and Dilley, Texas.  The Dilley facility is massive in scale with an eventual capacity to hold 2,400 women and children. LIRS’s report on family detention, “Locking Up Family Values, Again” details the reintroduction of this practice and its inhumane nature.

Currently there are two active lawsuits focused on aspects of family detention:

RILR v. Johnson

The American Civil Liberties Union filed a lawsuit on the grounds that DHS cannot arbitrarily detain asylum-seekers for the purposes of general deterrence. The court, located in the District of Columbia, issued a preliminary injunction prohibiting the administration from detaining asylum-seeking families in order to deter other families from migrating.  DHS officially announced in May 2015 that it would discontinue detention for the purpose of detention, prompting the court to lift the injunction as no longer necessary.

Flores Settlement

The Flores settlement is a 1997 agreement with the U.S. government resulting from litigation over the government’s detention policy toward children traveling alone in the 1980s. The agreement sets national standards for children in government custody, requiring that children be held in the least restrictive setting necessary to meet the government’s objectives. The agreement also requires that children be released without delay to a parent or legal guardian. In January 2015, Flores counsel filed a motion to enforce the settlement on the grounds that the detention of families violates its terms.

Concerns with Immigration Detention

Detention violates international human rights principles: International human rights principles dictate that immigrants should only be detained as a last resort.  In the United States, immigration detention is not, in theory, meant to be punitive. Rather, the government’s sole interest in detaining individuals is to ensure compliance with immigration court dates and orders of removal. However, the current system uses a one-size-fits-all approach, presuming nearly all immigrants require detention to comply with these government interests.

Detention is inflexible and wastes tax-payer money: DHS is currently required to maintain 34,000 detention beds for immigration purposes every day.  To maintain this level of detention, the government does not release eligible immigrants or place them into alternatives to detention. Since its establishment in 2007, this bed quota has led to increased arbitrary detention of migrants and those seeking protection in the U.S. every year. This quota wastes U.S. tax payer money and causes unnecessary suffering and harm to immigrants.

Detention is inefficient: Guidelines on prosecutorial discretion are used inconsistently and infrequently, resulting in the detention and deportation of thousands of immigrants who pose no flight risk and no danger to the community and causing painful and unnecessary family separation.

Detention violates due process rights: When migrants are detained, geographic and financial barriers make it difficult for them to obtain counsel and they have no right to a government-funded attorney. Lack of counsel has a direct impact on obtaining protection or immigration benefits.  One government report found that the asylum grant rate is three times higher for asylum-seekers with representation than those without.

Detention causes and exacerbates trauma: Detention is psychologically traumatic for all people. Immigration detainees often lack a full understanding of why they are being detained or what their legal rights are. Numerous human rights organizations have found detention to be inherently psychologically damaging because it aggravates isolation, depression and mental health problems associated with past trauma. Incarcerating vulnerable individuals, such as women and children, in jails or jail-like settings poses a serious threat to psychological health and risks re-traumatizing victims of abuse, torture and human trafficking.

Did You Know?

  • Many asylum seekers and other vulnerable migrants are subject to mandatory detention and are not considered for release.
  • U.S. taxpayers foot the astronomical cost of immigration detention. The federal government estimates detention costs approximately $123 per person per day while other organizations estimate a daily cost of $159 per individual, amounting to over $5 million per day. The cost for detaining families is even higher at $343 per person per day. For FY 2016, the government budgeted $2.3 billion for the detention of immigrants.
  • Alternatives to detention, such as the community-based support models LIRS implements, are a much more cost-effective option, as programs can cost anywhere between pennies to $8.49 per day.

LIRS’s Position

LIRS seeks to reform U.S. immigration detention policy to reduce reliance on detention, protect vulnerable migrants and ensure the fair treatment of all migrants who come into contact with federal immigration officials.  It is LIRS’s position that the U.S. government should expand community-based support models and other alternative to detention programs. Migrants who are not risks for flight or to the public safety should be released from detention.  Those needing additional support should be placed into local community programs that would provide them with housing, legal and social services, and ensure their appearance at immigration court proceedings.

Alternatives to detention ranging from most-restrictive electronic ankle bracelet monitoring to least-restrictive community-based support models – have been shown to ensure compliance with immigration court proceedings. DHS estimates have shown current alternatives can range in cost from pennies to $8.49 per person, per day.

LIRS staunchly opposes the inhumane practice of family detention. We reject the notion that vulnerable mothers and children, including toddlers, should be detained to comply with their immigration court proceedings.  Detention of families causes extreme and often permanent psychological harm to children and their parents – many who suffered in trauma in their home countries or on their journey north seeking safety.  This harm is in addition to the same harm shared by all immigrants in detention, including a fundamental lack of due process, inadequate access to legal representation, poor quality medical and mental healthcare.

In our 2014 report “Locking Up Family Values, Again”, we demonstrate that there is no humane way to detain families and that the administration should fully implement and expand alternatives to detention. LIRS’s 2007 report, “Unlocking Liberty: A New Way Forward for U.S. Immigration Detention Policy”, highlights the benefits of community-based alternatives to detention for vulnerable children and families because they are more supportive of migrants’ physical and emotional well-being, improve long-term integration outcomes and improve access to legal representation and other crucial services.

Relevant Legislation in the 114th Congress

Fair Day in Court for Kids Act of 2016 (S. 2540 and H.R. 4646), introduced in the 114th Congress, this bill ensures legal representation for unaccompanied children and other vulnerable migrants while they navigate the complex legal immigration system. Many unaccompanied children are eligible for legal relief, but they may be denied access to due process without the support of legal counsel. Additionally, this bill would create a case management pilot project to increase court appearance rates for individuals released from DHS custody. LIRS released a statement of support of this legislation on February 29, 2016.

The Accountability in Immigration Detention Act (H.R. 2314), introduced in the 114th Congress, would establish minimum detention center standards, including ones that would comply with the Prison Rape Elimination Act and ensure all detained migrants have access to the successful Legal Orientation Program. It would also require the Department of Homeland Security (DHS) to establish community-based alternatives to detention that incorporate case management, particularly for vulnerable populations. The bill would also allow agreements with community-based non-governmental organizations (NGOs). Key provisions in the bill would prevent the use of custodial alternatives to detention when release on bond is determined to be sufficient and eliminate the detention bed quota to allow DHS to determine their own detention needs.

The Michael Davis Jr., in Honor of State and Local Law Enforcement Act of 2015 (H.R. 1148/S. 1640), (previously known as the SAFE Act) introduced in the 114th Congress, is flawed legislation that would decrease access to justice, protections, and immigration relief for certain migrants. Among other troubling provisions, this bill would:

  • Make it a crime to be unlawfully present in the United States
  • Authorize all states and localities to create their own immigration enforcement laws
  • Subject certain migrants who cannot be returned to their countries of origin, including stateless persons, to indefinite detention
  • Expand the categories of migrants who are mandatorily detained

The Asylum Reform and Border Protection Act (H.R. 1153) and the Protection of Children Act of 2015 (H.R. 119), both introduced in the 114th Congress would, among other things, allow for children to be detained during their entire immigration court proceeding.

LIRS has consistently opposed these and other pieces of legislation that support harmful immigration enforcement activities and fail to live up to our legacy as a nation of welcome for those fleeing persecution.

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