Immigration Detention
Adults IMMIGRATION SERIES PREPARED FOR THE LATINO COMMUNITY FOUNDATION OF COLORADO BY CÉSAR CUAUHTÉMOC GARCÍA HERNÁNDEZ
T
he United States operates a large and growing network of secured facilities in which migrants are confined while they learn whether they will be allowed to remain in the United States. In recent years, the Department of Homeland Security (DHS), the federal agency charged with apprehending people who might be removable
from the United States, has held upwards of 400,000 people across roughly 200 locations. The vast majority are adult males. This paper addresses the adult population of immigration detainees.
A man has his fingerprints electronically scanned by a U.S. Border Patrol agent while others wait for their turn at the U.S. Border Patrol detention center in Nogales, Arizona. Jeff Topping, Reuters
Identifying Detainees DHS relies on two units for most of its immigration law enforcement activities: ICE and the Customs and Border Protection (CBP) agency. ICE and CBP share principal responsibility for identifying people who may have violated immigration law and taking those individuals into governmental custody. The two entities differ in their geographic reach. While ICE is primarily tasked with immigration law enforcement operations in the nation’s interior, CBP carries out that function along the nation’s borders and ports-of-entry. To accomplish this, ICE counts on approximately 20,000 employees, including roughly 17,000 law enforcement agents. CBP employs an estimated 60,000 people, including approximately 20,000 law enforcement agents in its Border Patrol component. 1 The Border Patrol investigates immigration law violations along the border between ports-of-entry. Stationed along the nation’s borders as well as at inland ports-of-entry such as airports, CBP personnel identify people who might be removable from the United States in large part through one-on-one interviews with incoming
1
César Cuauhtémoc García Hernández, ICE Enforcement Actions: Something Old, Something New, CRIMMIGRATION.COM BLOG (Feb. 14, 2017, 4:00 A.M.), http://crimmigration.com/2017/02/14/ice-enforcement-actions/ 1
travelers. In other instances, Border Patrol officers encounter individuals at or near the border who they suspect are present in violation of immigration law. Whether at a port-of-entry or not, CBP officers have several options about how to proceed when they believe that a person is removable, only some of which involve detention. At a land port-of-entry, the officer can allow the person to withdraw her request for admission and literally turn around and return to México or Canada. CBP officials can also allow migrants to voluntarily return to México or Canada and might even drive the migrant to a land port-of-entry. This was a frequent method used along the Southwest border for much of the nation’s history. A third option is to initiate removal proceedings (the formal term for deportation proceedings) in immigration court by issuing a “notice to appear” (NTA). Individuals issued an NTA are usually handed over to ICE for detention. ICE officers are similarly authorized with discretion anytime they encounter a potentially removable individual. Through its Enforcement and Removal Operations and Homeland Security Investigations units, ICE deploys law enforcement agents into communities to apprehend suspected violators of immigration law. This is an expensive tactic. For example, ICE’s National Fugitive Operations Team, created in 2003, sends teams of agents in search of potentially removable individuals to residences, worksites, and other locations. In fiscal year 2013, Congress allocated $133 million to the NFOP, resulting in 31,222 arrests. In addition to sending its own agents to make arrests, ICE also harnesses the power of state and local police forces that arrest people as part of their daily duties. Law enforcement agencies nationwide use a repository of criminal history information maintained by the Federal Bureau of Investigation. Every day, officers throughout the United States tap vast criminal history databases updated by their counterparts at other state and local law enforcement agencies and, in turn, update arrest and conviction information as they obtain it. With few exceptions, everyone booked into the custody of a local law enforcement agency has their fingerprints sent to the FBI. The FBI, in turn, shares that fingerprint data with DHS which sifts the information through their immigration database. If crossreferencing reveals that a person might be removable from the United States, ICE can either request custody of the suspect or issue an “immigration detainer” asking the local law enforcement agency to notify ICE prior to the person’s release from custody. 900,000 850,000 800,000 750,000 700,000 650,000 600,000 550,000 500,000 2009
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Figure 1. DHS apprehensions, CBP and ICE combined, per year. Source: U.S. Dep’t of Homeland Security, Office of Immigration Statistics. Immigration Enforcement Actions 2011 and 2014 Annual Reports.
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Working in tandem, ICE and CBP take into their custody several hundred thousand people every year (see Figure 1). But not everyone arrested remains detained. Because CBP and ICE officers retain considerable discretion about how to proceed, some arrested migrants are not transferred to an ICE immigration detention center. Despite this, ICE detains many people every year. The agency hit its modern peak in 2012 when almost 478,000 people spent at least one night inside a detention center (see Figure 2). Confining this many people is expensive. Months into the Trump administration, Congress appropriated $2.7 billion to ICE to pay for 39,324 beds nightly.
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Figure 2. ICE detention population, by year. Source: U.S. Dep’t of Homeland Security, Office of Immigration Statistics. Immigration Enforcement Actions 2011 and 2014 Annual Reports.
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Who is Detained Any violation of federal immigration law can result in detention. Coming to the United States without the federal government’s permission, a common occurrence, is a violation of immigration law that can result in detention. The same consequences can result from violating the terms of a short-term visa affiliated with a certain activity—for example, coming to study at a university or for temporary employment. For some immigration-law violations, however, Congress does not allow detention; instead, immigration law requires detention. People thought to have committed or been convicted of a variety of crimes are subject to so-called “mandatory detention.”2 Neither an ICE officer nor immigration judge is authorized to release mandatorily detained individuals. The ICE detention population is decidedly skewed toward migrants from Latin America. From 2009 to 2014, Mexican citizens comprised the largest number of detainees. In each of those years, they were followed by citizens of Guatemala, Honduras, and El Salvador, though their rank order sometimes changed. Interestingly, while the number of detained Mexicans declined over this period, the number of detained Central Americans increased. In 2014, for example, there were 211,184 citizens of Honduras, Guatemala, and El Salvador—the so-called Northern Triangle region—detained by ICE. That was more than the 172,560 Mexicans detained that year and just shy of fifty percent of the total. Without doubt, many Mexicans and Central Americans come to the United States without the federal government’s permission and countless others engage in some type of activity while here that potentially subjects them to removal. But Mexicans and Central Americans do not have a monopoly on immigration law violations. Canadian citizens could easily replace a large percentage of the detained population. DHS reports that in 2016, 172,247 Canadians failed to leave the United States when their permission to stay expired. The previous year 99,906 Canadians violated immigration law in this manner. Yet Canadians did not make the list of top-ten countries whose citizens are detained in either year. US Immigration and Customs Enforcement agents arrest foreign nationals during a targeted enforcement operation in Los Angeles, February 7, 2017. Immigrations and Customs Enforcement handout via Associated Press
2
Immigration and Nationality Act § 236(c); 8 U.S.C. § 1226(c). 4
Conditions of Confinement ICE’s network of roughly 600 detention facilities spreads from rural Eloy, Arizona to lower Manhattan. 3 Most are nothing more than county jails from which ICE essentially rents beds from the local sheriff. Sometimes ICE detainees are housed in the same cell as criminal inmates. In other instances, ICE contracts with a private prison corporation for bed space. ICE owns only a handful of the detention centers it regularly uses. Whether they are actually jails or not, all the detention centers at ICE’s disposal operate on standards developed for criminal incarceration. Detainees’ movements are regulated by security personnel, access by family members and attorneys is limited, and guards maintain order using a correctional mindset. What is odd about this practice is that ICE detainees are supposedly not being punished. The Supreme Court has repeatedly noted that immigration detention is not a type of penal confinement. For its part, ICE resists describing its facilities as jails or prisons, preferring instead “detention center” or “processing center.” Yet the evidence is vivid that the formal distinction that courts and ICE officials make contradicts the reality. As an ICE official charged with revamping the agency’s detention system acknowledged in 2009, “With only a few exceptions, the facilities that ICE uses to detain aliens were built, and operate, as jails and prisons…. ICE relies primarily on correctional incarceration standards…and on correctional principles of care, custody, and control.”4 Problems inside ICE detention centers are legion. Advocates regularly complain about sexual assaults and lack of sound health care. Deaths are not uncommon. From 2004 to 2014, at least 144 people died in ICE’s custody. 5 Despite these shortcomings, there are no legally-binding standards that apply to immigration detention centers. Instead, the detention network is subject to a patchwork of three sets of standards—the oldest dating back to 2000, three years before ICE was created. When a detention center operator fails to meet those standards, only ICE can hold them accountable. Only in the rarest of occasions, however, has it terminated a contract because of repeated failure to meet ICE’s standards. Photo by Muck Rock,The exterior of a Geo Group private prison.
3
Transactional Records Access Clearinghouse, New Data on 637 Detention Facilities Used by ICE in FY 2015, http://trac.syr.edu/immigration/reports/422/ (April 12, 2016). 4 DORA SCHRIRO, IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 2 (2009). 5 César Cuauhtémoc García Hernández, ICE Deaths, CRIMMIGRATION.COM BLOG (May 2, 2017, 4:00 A.M.), http://crimmigration.com/2017/05/02/ice-deaths/. 5
Gendered Impact Though most detainees are male, women experience unique vulnerabilities when detained. First, women are at times sexually assaulted. According to the Government Accountability Office, ICE was aware of 215 allegations of sexual abuse and assault inside detention centers from October 2009 through March 2013. About sixty percent identified a fellow detainee as perpetrator, while most of the rest accused staff.6 Second, detained women frequently experience separation from children or other family members. At times, a mother’s detention results in a child being placed in foster care. One survey of participants in a county family court found that judges, social workers, and attorneys frequently described parents detained by ICE as having disappeared.7 In the most extreme cases, mothers have been stripped of parental rights because they were detained by ICE.
Jose Cabezas, Getty Images https://www.huffingtonpost.com/2014/01/08/ice-pregnant-women-detained_n_4561049.html
Conclusion Despite its massive size, the immigration detention system shows no signs of shrinking. On the contrary, Congress has already shown itself willing to work with the Trump administration to expand the number of beds at ICE’s disposal. Meanwhile, there appears to be little interest among administration officials or members of Congress to impose stricter oversight on ICE’s detention network.
6
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-14-38, IMMIGRATION DETENTION: ADDITIONAL ACTIONS COULD STRENGTHEN DHS EFFORTS TO ADDRESS SEXUAL ABUSE 60 (2013, rev. Dec 6, 2013). 7
Nina Rabin, Disappearing Parents: Immigration Enforcement and the Child Welfare System, 44 CONN. L. REV. 99, 118-21 (2011). 6
César Cuauhtémoc García Hernández is an associate professor of law at the University of Denver and publisher of the blog crimmigration.com.
The 2017 Immigration Detention series was commissioned by the Latino Community Foundation of Colorado. Thank you to the Abarca family for supporting this work.
600 South Cherry Street, Suite 1200 Denver, Colorado 80246 303.398.7405 latinocfc.org lcfc@rcfdenver.org