U.S. Immigration Policy: Dysfunctional, Profitable and Resistant to Reform

U.S. Immigration Policy: Dysfunctional, Profitable and Resistant to Reform

By Derek Gilna

The nation’s economy remains fragile, U.S. troops continue to fight a losing war in Afghanistan, North Korea has recently threatened a nuclear attack, and in March 2013 Congress and President Obama failed to reach a compromise to prevent the “sequester,” which mandates deep spending cuts on the federal level. Yet issues related to immigration – including immigration reform – still manage to dominate national headlines.

The results of the last presidential election, in which over 70% of Hispanics cast their ballots for Obama, have led many panic-stricken Republican politicians to seek ways to avoid electoral irrelevancy at the hands of an increasing number of Hispanic voters.

Consequently, immigration reform is getting serious play in Washington at a time when federal spending on immigration enforcement and border security –  estimated at almost $18 billion in fiscal year 2012 according to a recent report by the Migration Policy Institute – totals more than the budgets of all other federal law enforcement agencies combined, including the FBI, DEA, and ATF.

Lawmakers Examine Immigration Reform

On January 28, 2013, the so-called “Gang of Eight,” comprised of eight U.S. Senators – four from each party – released a Comprehensive Immigration Reform (CIR) proposal. Among other provisions, the CIR creates a path to citizenship for certain non-criminal immigrants residing in the U.S. illegally who pass a background check, learn English, and pay fines and back taxes. The proposal would also require employers to verify the citizenship status of their workers; create a registration program for undocumented immigrants and a tracking system for immigrants who are legally in the U.S.; and increase border security, including the use of unmanned drones.

“Our legislation acknowledges these realities by finally committing the resources needed to secure the border, modernize and streamline our current legal immigration system while creating a tough but fair legalization program for individuals who are currently here,” the CIR proposal states. The Gang of Eight plans to introduce a bill based on their proposal in April 2013, while a bipartisan group of House members is also reportedly working on a plan for immigration reform.

President Obama has released a draft version of his own immigration reform proposal, which mirrors many of the recommendations made by the Gang of Eight, including a pathway for non-criminal immigrants to become citizens. Previously, in June 2012, Obama signed an executive order that provides two years of “deferred action” on deportation proceedings for undocumented immigrants who were under age 16 when they came to the U.S., have graduated from high school or obtained a GED, do not have a serious criminal record and meet other requirements.

The focus on immigration reform, including discussions about a pathway to citizenship, should be good news for the estimated 11 million undocumented immigrants currently living in the United States. Or perhaps not.

Other major government initiatives to address social problems haven’t worked out so well. Prohibition, for example, or its more modern iteration, the “War on Drugs,” which was sold to voters as a necessary means of ridding their communities of substance abuse and crime, but quickly morphed into overcrowded prisons, bloated corrections budgets, broken families and innumerable abuses by law enforcement agencies.

Just as marijuana legalization and decriminalization, criticism of mandatory minimums and harsh sentencing guidelines, and disgust with high rates of incarceration for minor non-violent crimes are becoming part of the public dialogue on criminal justice issues in the U.S., the federal government’s ongoing battle against undocumented immigrants is taking center stage in political discourse.

As a result, groups that have an interest in immigration issues – including financial interests – are becoming increasingly involved. Concerned stakeholders include labor unions, agribusiness companies, farmers, factory owners, and advocacy groups on both sides of the immigration debate. Another group with a vested interest is the private prison industry, comprised of companies that operate immigration detention facilities.

Both the Gang of Eight’s immigration reform recommendations and the draft proposal advanced by the White House include increased border security, which means apprehending and incarcerating more undocumented immigrants.

Evolution of U.S. Immigration Policy

Immigration was not always a national priority. The Immigration and Naturalization Service (INS) was established in 1933 when the Bureau of Immigration and Bureau of Naturalization were merged. The INS, which became part of the U.S. Department of Justice in 1940, received minimal resources and manpower in comparison with other federal law enforcement agencies, even after Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, which resulted in an increase in immigration detention.

This changed after 9/11 when the Homeland Security Act of 2002 opened the funding floodgates and the INS was folded into the newly-formed Department of Homeland Security (DHS) in 2003. At that time, INS became Immigration and Customs Enforcement (ICE). While the INS was known for an indifferent approach to apprehending undocumented immigrants, ICE became a bureaucratic superpower due to increased DHS funding and a mandate to protect the nation’s borders from terrorists and other threats.

From an agency that was once the stepchild of the federal law enforcement community and lacked the respect afforded to the FBI and U.S. Marshals, ICE has grown into a powerhouse that is armed with the latest equipment, “virtual border fences,” unmanned surveillance drones, and the broad authority to detain, arrest and interrogate suspects under the Patriot Act. While other federal law enforcement agencies must make their case for more funding, ICE continues to receive almost everything it requests. Even in tight economic times, ICE’s 2013 FY budget is $5.3 billion – which includes about $2 billion for detention operations.

What have such massive expenditures achieved? A failure to stem the tide of illegal immigration, apparently. According to the Pew Hispanic Center, the number of undocumented immigrants in the United States has steadily increased over the past decade to an estimated 11.1 million as of 2011. This represents a 32% increase since 2000 when the population of immigrants residing in the U.S. illegally was estimated at 8.4 million.

The number of people incarcerated for immigration-related offenses has likewise soared in the past decade, spurred by federal prosecutions for illegal entry and re-entry into the United States. Even the U.S. Sentencing Commission, in a recent report to Congress, has noted the increased prosecution of undocumented immigrants over the last several years. As of June 2011, Hispanics accounted for almost half the defendants sentenced to federal prison, largely due to immigration violations. [See: PLN, May 2012, p.26; Aug. 2009, p.26].

One of the drivers of increased prosecutions for immigration-related offenses is an initiative called “Operation Streamline,” which went into effect in 2005 to combat the growing problem of illegal entries along the U.S.-Mexico border. Operation Streamline includes a fast-track system in which immigrants are herded into federal courts for mass hearings and guilty pleas.

“[Prior to 2005,] typically when someone was apprehended at the border they would be deported or dealt with in the civil immigration system,” said Bob Libal, executive director of Grassroots Leadership. “What Streamline did was move those people into the criminal justice system and charge[] them with one of two crimes.”

First-time immigration violators are usually charged with misdemeanors, provided they have no prior criminal history, under 8 U.S.C. § 1325. Defendants with criminal records, or who are caught illegally in the United States a second time or are smuggling other immigrants, can be charged with felonies under 8 U.S.C. § 1326. Illegally re-entering the United States after being deported carries a penalty of up to 20 years in federal prison.

U.S. Senator and Gang of Eight member John McCain, whose principal response to questions about immigration issues during his 2008 presidential campaign was “Build the damn border fence!,” is one of the champions of Operation Streamline. Another is Senator Marco Rubio, also a Gang of Eight member.

One of the unforeseen consequences of Operation Streamline has been the virtual paralysis of the federal court system in many Southwestern states as courts try to process an unprecedented number of immigration violation arrests, prosecutions, and sentencing hearings. Just five of the nation’s 94 federal court districts, all along the U.S.-Mexico border, now handle more than 40% of all federal criminal cases due to immigration-related prosecutions. [See: PLN, May 2012, p.26; Feb. 2011, p.11].

Another ICE-sponsored program, Secure Communities, requires fingerprints from all persons arrested at the state and local levels to be sent to DHS to determine whether they are in the country illegally. If there is a fingerprint match, an arrestee can be held on an ICE detainer and is subject to deportation proceedings. [See: PLN, June 2011, p.42].

According to ICE, Secure Communities has expanded “from 14 jurisdictions in 2008 to more than 3,000 today, including all jurisdictions along the southwest border. DHS is on track to expand Secure Communities to all law enforcement jurisdictions nationwide during fiscal year 2013.”

Immigration Detention for Profit

America has historically welcomed people from other countries, and much of our nation was built by immigrants. Indeed, the United States was originally founded by immigrants who displaced (and largely eliminated) the Native American population. The U.S. has long been called a “melting pot” that has absorbed people of all nationalities.

However, most citizens are busy going about their private lives, trying to earn a living during one of the worst economic downturns in recent history. While they may feel strongly one way or the other about immigration-related policies, most have no personal stake in the issue and do not lobby members of Congress or make campaign contributions in an effort to influence the process. Undocumented immigrants do not have the ability to vote, of course, and thus they and their families have no political voice.

This leaves private businesses with substantial financial interests – and assets – to advocate for immigration policies that are most beneficial to their bottom lines. Such corporate interests, however, may not coincide with the greater societal interests at stake in our nation’s immigration policies.

Many immigration reform advocates feel that the private prison industry is a primary driver of increased pressure to incarcerate more and more people for immigration violations. Indeed, private prison companies directly profit from practices that result in expanded immigration detention, as operating detention facilities has become a significant source of revenue for private prison firms like Corrections Corporation of America (CCA), GEO Group, and Management and Training Corporation (MTC).

Contracts with ICE to operate immigration detention centers constituted 12% of CCA’s gross revenue and 14% of GEO Group’s gross revenue in 2011. According to the Associated Press, only 10% of all detained immigrants were housed in privately-operated facilities in 2002, but that figure is now around 50% – not including immigrants convicted of federal crimes who are held in privatized “Criminal Alien Requirement” prisons.

“Another factor driving growth … for the private sector is in the area of immigration and illegal immigration specifically,” stated GEO Group Chief Financial Officer Brian Evans in a 2011 earnings call.

In an apparent attempt to promote immigration policies that result in increased detention of undocumented immigrants – and thus larger profit margins – private prison companies have stepped up their already strong lobbying efforts on the federal level. On the other side of the immigration debate, private prison firms view policies that result in less detention as a threat to their business model.

As noted in CCA’s 2011 annual report, “The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts…. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”

GEO Group wrote in a 2011 SEC filing that “Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.”

Consequently, working against the socially-beneficial goals of immigration reform and a reduction in the immigration detention system is a flood of money unleashed on elected officials by private prison corporations and their lobbyists. CCA and GEO Group took in combined gross revenue of $3 billion in 2011 alone, and are not shy about spending to influence public policy.

According to the Associated Press, the nation’s three largest private prison companies, CCA, GEO, and MTC, spent at least $45 million from 2000 to 2012 in campaign donations and lobbying expenditures on the state and federal levels.

A significant portion of that political largess has gone towards lobbying the Department of Homeland Security, ICE’s parent agency, and to contributions to lawmakers who are key players in the immigration debate. For example, private prison firms have donated $71,000 to Senator John McCain and at least $27,300 to Senator Marco Rubio – both members of the Gang of Eight – and $63,000 to House Speaker John Boehner. U.S. Rep. Hal Rogers, who has criticized ICE for not filling all of its available immigration detention beds, and who heads the House Appropriations Committee, received around $59,000. Former Senator (and Republican Majority Leader) Bill Frist took in $58,500, while Senators Lamar Alexander and Bob Corker, who represent Tennessee, where CCA is headquartered, each received over $50,000.

In addition, approximately $450,000 in private prison money went to national and congressional Republican Party committees; Democratic Party committees took in less than half that amount.

“The private prison industry is swamping the Senate Budget and Appropriations Committees to try to buy them to keep Operation Streamline so they can incarcerate more immigrants in private prisons despite immigration reform,” observed Peter Cervantes-Gautschi, director of Enlace, an alliance of low-wage worker centers, unions and community organizations in Mexico and the United States.

Private prison companies, primarily CCA and GEO, have also spent money on federal lobbying, reaching a high of $5 million in 2005 alone. According to lobbying disclosure statements, CCA lobbied the U.S. Senate, House of Representatives, Department of Homeland Security and Immigration and Customs Enforcement, among other federal agencies, on issues that included “immigration,” “immigration reform,” “immigration reform legislation” and “provisions & funding related to ICE.”

Beyond campaign donations and lobbying, there is a connection between private prison firms and some of the more draconian anti-immigrant legislation, such as Arizona’s SB 1070, which was filtered through the American Legislative Exchange Council (ALEC). CCA, a member of ALEC at the time, reportedly had a seat at the table when SB 1070 was drafted. [See: PLN, Nov. 2010, p.1].

This was despite the fact that CCA has an official corporate policy against “engaging in lobbying or advocacy efforts that would influence enforcement efforts, parole standards, criminal laws, and sentencing policies.” Similarly, according to GEO spokesman Pablo E. Paez, “the GEO Group has never directly or indirectly lobbied or advocated to influence immigration policy.” Like CCA, GEO was formerly a member of ALEC.

After SB 1070 was introduced in January 2010, 36 Arizona state senators joined as co-sponsors; within the next six months, 30 of those co-sponsors received campaign contributions from private prison firms, including CCA and GEO.

Additionally, there are documented cases of former immigration officials finding lucrative careers in the private prison industry after leaving their government positions. CCA board member Donna M. Alvarado previously served as counsel for the U.S. Senate Committee on the Judiciary’s subcommittee on Immigration and Refugee Policy. And GEO Group vice president David J. Venturella is the former director of ICE’s Secure Communities program; he has also served as acting director and assistant director of ICE’s Office of Detention and Removal Operations.

There is further a lack of transparency, and thus public accountability, in privatized detention centers relative to those operated by the government: Privately-managed facilities that house detained immigrants are not subject to the Freedom of Information Act (FOIA). PLN managing editor Alex Friedmann and doctoral student Christopher Petrella are currently engaged in a campaign to have the Private Prison Information Act reintroduced during this Congressional session, which would extend FOIA to private prison contractors. [See: PLN, Feb. 2013, p.14].

It is apparent that our national policies on immigration have created what human rights organizations have termed a “detention industrial complex.” The proliferation of immigration detention facilities – many of which are privately operated – has created perverse financial incentives to perpetuate programs like Operation Streamline and Secure Communities, which result in more immigrants being arrested and incarcerated.

This is despite the fact that most detained immigrants have not committed crimes other than immigration-related offenses, which previously were considered civil violations, and that many could be released and supervised in the community at a much lower cost, such as by GPS monitoring, rather than being detained pending deportation hearings.
GEO Group, not incidentally, is now involved in GPS monitoring after the company acquired a firm called BI, which contracts with ICE to monitor more than 35,300 immigrants under community supervision. [See: PLN, Feb. 2012, p.12; April 2011, p.40].

How the Immigration System Works – or Doesn’t

Internal records from ICE, obtained via a Freedom of Information Act request, reveal a “bleak picture of the inside of the nation’s immigration detention system,” according to the Houston Chronicle. In order to detain growing numbers of undocumented immigrants, ICE relies on a national network of 250 detention facilities with around 33,400 beds, which it is mandated to keep full. Around half of the facilities are operated by private prison companies.

When U.S. citizens are arrested for criminal offenses they are usually transported to a relatively accessible police station or jail. They go before a judge in a  timely manner, who sets bail in most cases. They are appointed an attorney if they cannot afford one. While not perfect, the system is fairly open and transparent.

Not so for immigrants, who are taken to a jail or detention center where they may or may not be able to contact their families. They are generally not granted bail, and are not appointed counsel; most immigrants must represent themselves in deportation proceedings. Until recently, with the launch of ICE’s Online Detainee Locator System in July 2010, there was no easy way to determine where people arrested on immigration violations were being held; they basically “disappeared.”

Another disturbing development in the immigration enforcement system is the proliferation of almost 200 ICE “subfield offices,” which are used to detain and temporarily hold thousands of undocumented immigrants. Theoretically intended to confine detainees who are in transit to more permanent facilities, subfield offices often lack beds, showers, medical facilities, or telephones. They are typically situated in plain office buildings with no signs to mark their presence. [See: PLN, Sept. 2010, p.22].

After being taken into custody and processed through either an ICE field or subfield office, detained immigrants are frequently housed in county or municipal jails alongside criminal offenders. The jails receive per-diem payments from the Department of Homeland Security for holding ICE detainees, which is a financial bonanza for many local law enforcement agencies. [See: PLN, July 2010, p.33; April 2010, p.18; Oct. 2009, p.19]. Other detainees are transferred to facilities operated by private prison contractors such as CCA or GEO Group.

With such financial inducements in place, it is not surprising that the number of people held in immigration detention, and subsequently deported, has skyrocketed. Over 392,860 immigrants were deported in 2009, and that figure rose to 396,906 in 2010. [See: PLN, June 2011, p.42]. The number of deportations currently exceeds 409,800 annually – which is almost double the total prison population of the federal Bureau of Prisons. The average cost to hold an immigrant in detention is around $166 per day, as calculated by the Associated Press and confirmed by ICE.

Immigration officials have defended the large number of deportations and staggering costs of processing and detaining undocumented immigrants by alleging that half of those deported are convicted criminals. A closer examination of the Justice Department’s figures, however, indicates that less than 10% of deported immigrants had committed forcible felonies or “major” drug offenses. Because ICE does not define what it considers a “major” drug violation, that category of offenses is open to interpretation. The fact remains that most immigrants who are deported are non-violent, low-level offenders; for example, a 2009 report by Human Rights Watch found that only 28 percent of deportees had been convicted of violent crimes. [See: PLN, Aug. 2010, p.28].

Once they have been detained pending deportation hearings, immigrants are entitled to few procedural safeguards. They go before an immigration “judge,” who is an administrative appointee of the Justice Department. Immigration judges have been criticized for “a pattern of biased and incoherent decisions in asylum cases,” according to the New York Times. In one ruling, the Seventh Circuit Court of Appeals stated, “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” See: Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005).

There were around 260 immigration judges nationwide responsible for 323,725 cases as of January 2013 – a crushing caseload for even the most dedicated judicial officer. Most immigration hearings are held in detention centers or federal courthouses, outside the public’s purview. In most of these cases, an immigrant’s fate is in the hands of an immigration judge – who is frequently a former ICE employee.

Some public officials, including Attorney General Eric H. Holder, Jr., the nation’s chief law enforcement officer, have acknowledged problems with the U.S. immigration system. For example, along with New York City Mayor Michael Bloomberg and retired Supreme Court Justice John Paul Stevens, Holder has noted that immigrants represented by attorneys are at least five times more likely to prevail in their immigration cases than those who lack counsel. This is disturbing since most people facing deportation proceedings do not have legal representation.

Immigration Policy: Outcomes and Consequences

Currently, our federal immigration detention policies mirror the criminal justice and sentencing practices that led to an exponential increase in the U.S. prison and jail population over the past three decades. But unlike our nation’s carceral population of 2.3 million, which has leveled off in recent years and actually posted a slight decline in 2011, the immigration detention system continues to grow.

“At the federal level, initiatives related to border enforcement and immigration detention with an emphasis on criminal alien populations as well as the consolidation of existing detainee populations have continued to create demand for larger-scale, cost-efficient facilities,” GEO Group CEO George Zoley said in 2011.

Beyond immigration-related issues being a hot-button topic and endless source of political debate, the publicity surrounding the “War on Terror” has resulted in increased concerns about border security and, consequently, increased pressure on undocumented immigrants. Such pressure and massive expenditure of federal funds to apprehend and incarcerate immigrants residing in the U.S. illegally have occurred with little regard to the societal and human rights consequences of our nation’s immigration policies.

According to one lawsuit filed following an immigration raid, ICE officers “allegedly entered private residences without search warrants or consent, and arrested persons therein without arrest warrants or probable cause … defendants detained all of the plaintiffs before learning about their immigration status … did not inform the plaintiffs of their rights or why they were being seized … [and] coerced them into signing English forms with no or minimal translation.” The case settled in December 2011 for $350,000. [See: PLN, April 2012, p.40].

There has been a concurrent erosion of U.S. citizens’ rights. Billions of dollars have been spent to create a colossal post-9/11 domestic surveillance infrastructure that includes warrantless wiretapping, security checkpoints where people are stopped and asked about their citizenship status, and dozens of “fusion centers” nationwide that collect and compile information for sharing among law enforcement agencies. [See: PLN, Aug. 2012, p.32].

An entire industry has evolved to service the demands of the “War on Terror,” and the public has been misled to believe that terrorists and undocumented immigrants are somehow conflated and that immigration violations are threats to national security. However, as noted by Benjamin Franklin, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

What has the U.S. achieved as a result of its record number of deportations, billions of dollars spent on immigration enforcement, and an archipelago of 250 ICE detention facilities scattered across the nation? While DHS and ICE have apprehended 663 undocumented immigrants from countries like Cuba, Iran, Syria, Sudan, Somalia, Afghanistan, Pakistan, Saudi Arabia, and Yemen, to date none of those immigrants have been prosecuted for terrorist acts. ICE is not as anxious to publicize the millions of immigrants who have successfully entered the U.S. illegally without being caught.

Our nation’s harsh immigration policies have drawn the attention of international human rights organizations, including the Inter-American Commission on Human Rights, an arm of the Organization of American States (OAS). After investigating six U.S. immigration detention centers, the Commission issued a report stating it was “deeply troubled by the continual and widespread use of [criminal] detention in immigration cases.” It suggested the more liberal use of bail to reduce the number of people held in custody. The Commission also was troubled by ICE’s 287(g) program, which “allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions.”

The Commission concluded that “in many, if not the majority of cases, detention is a disproportionate measure and the alternatives to detention programs would be a more balanced means of serving the State’s legitimate interest in ensuring compliance with immigration laws.”

Faced with criticism from some border-state officials who have sought more stringent enforcement of immigration statutes, the U.S. government has been slow to respond to human rights concerns. However, there is evidence to suggest that over the past several years the issue is being reframed.

In 2009, the United States began to shift from high-profile workplace immigration raids to less controversial auditing of I-9 forms (the documents that employees must submit indicating they have the legal status to work in the U.S.). This change came after several raids, including a noteworthy one in New Haven, Connecticut, resulted in federal civil rights lawsuits being filed against ICE agents who used tactics usually seen in major drug busts even though they were enforcing civil immigration laws.

The ACLU, long active in immigration reform efforts, has grudgingly noted some positive developments. David Shapiro of the ACLU National Prison Project stated that progress on immigration detention reform has been “halting.”

“There were some positive reforms. But really, in terms of substantive improvements in conditions, a lot of them have just failed to materialize,” he said. “Detainees are still held in facilities that really are indistinguishable from prisons and jails … and a lot of times, the conditions are really quite atrocious.”

Immigration Detention Facilities Decried

An increasing number of undocumented immigrants are being criminally charged and held in jails and detention facilities under conditions similar or identical to those reserved for criminal defendants. While the increased criminalization of immigration-related offenses has been a financial boon for the private prison industry, it has been a human rights disaster for immigrants who enter the U.S. seeking jobs and better lives for themselves and their families.

On November 15, 2012, Detention Watch Network (DWN) released a report naming the ten worst immigration detention centers in the nation. “At all ten of the facilities, people reported waiting weeks or months for medical care; inadequate and in some cases a total absence of any outdoor recreation time or access to sunlight or fresh air; minimal and inedible food; the use of solitary confinement as punishment; and the extreme remoteness of many of the facilities from any urban area which makes access to legal services nearly impossible.”

Notably, four of the ten worst facilities cited in the DWN report are operated by private companies: two by CCA (the Houston Processing Center in Texas and Stewart Detention Center in Georgia), one by Community Education Centers (the Polk County Secure Adult Detention Facility in Texas) and one by Paladin Eastside Psychological Services, Inc. (the Tri-County Detention Center in Illinois).

According to Meghan Rhoad, a Human Rights Watch researcher, “A central premise of the detention reform was that stronger federal oversight [of private detention center contractors] would protect the welfare of detained immigrants. That was repeated over and over. But, clearly, oversight means more than just monitoring. It means taking action. There have to be consequences for facilities that repeatedly fail to meet the minimum standards.”

Human Rights Watch, in a 2010 report titled “Deportation by Default,” highlighted how the U.S. immigration system has failed to safeguard immigrants in detention who have mental disabilities, estimated to be 15% of the ICE detainee population. The report documented how even U.S. citizens with mental disabilities, unable to prove their citizenship, have been deported, and cited other cases where immigrants were left in detention indefinitely without proper medical care.

A federal class-action lawsuit is currently pending that alleges immigrants with mental disabilities have been mistreated by ICE officials, denied proper mental health care, and denied access to legal counsel to address their grievances. See: Franco-Gonzalez v. Napolitano, U.S.D.C. (C.D. Cal.), Case No. 2:10-cv-02211-DMG-DTB. The plaintiffs are represented by the Northwest Immigrant Rights Project, the ACLU, Public Counsel, Mental Health Advocacy Services, and the Los Angeles law firm of Sullivan & Cromwell, LLP.

It was not until May 2011 that the Board of Immigration Appeals created guidelines for dealing with detained immigrants who are mentally ill.

Prison Legal News has reported numerous cases in which immigrants held in ICE detention facilities have been denied adequate medical treatment, including the case of Francisco Castaneda, whose penile cancer went untreated while he was in ICE custody, resulting in the amputation of his penis and his subsequent death. [See: PLN, June 2011, p.24; April 2010, p.46; Sept. 2008, p.32]. Medical care within the immigration detention system has been condemned by Physicians for Human Rights [See: PLN, Dec. 2011, p.40] and has resulted in successful lawsuits [See: PLN, Nov. 2011, p.38], while the number of immigrants who have died in ICE custody – and the failure of ICE and its private contractors to accurately disclose those deaths – has led to widespread criticism. [See: PLN, Nov. 2009, p.26; Feb. 2009, p.10; Sept. 2008, p.30].

Not to mention the sexual abuse of immigrants by detention facility employees. [See: PLN, Dec. 2011, p.42].

Additionally, in a November 2011 article, Washington Post writer Esther J. Cepeda commented on another black eye for the U.S. immigration system, highlighted in a report by the Applied Research Center titled “Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System.”

The study, according to Cepeda, “is the first … illustrating how frequently parents and children are separated when they’re caught up in immigration detention systems.” The report found that as a result of its detention policies, ICE separated more than 46,000 immigrant parents from their U.S. citizen children in the first six months of 2011, resulting in 5,100 children being placed in foster care. Cepeda called this policy evidence of “moral bankruptcy.”

Recent Developments and Future Reforms

Beginning in February 2013, something unusual happened: ICE began releasing hundreds of detained immigrants, totaling 2,228 nationwide – an unprecedented mass release. Was it because ICE had suddenly realized the folly of detaining, for lengthy periods of time, immigrants who had committed civil immigration violations or low-level offenses such as traffic infractions? Did the releases indicate a sudden shift in U.S. immigration policy? Unfortunately not.

Instead, the release of thousands of immigrants apparently was a gambit in the ongoing struggle between the White House and Congress over the looming sequester. Absent agreement on budget reductions, the sequester would require automatic, mandatory spending cuts for most federal agencies, including ICE. Immigration officials claimed that the releases, in advance of the sequester deadline, were to ensure that ICE could accommodate the mandatory budget cuts. ICE Director John T. Morton said the releases were for “solely budgetary reasons.” However, critics contended they were used as a blunt bargaining tactic to force Congress to the table on a federal budget compromise.
If the mass releases from ICE detention facilities – which infuriated members of Congress, mostly Republicans – was a tactical ploy, then it failed. No compromise was reached and the sequester went into effect on March 1, 2013. But the releases did achieve the unintended goal of providing ammunition to advocates seeking a reduction in immigration detention.

“ICE’s stated justification for the releases – that it had determined these individuals could be ‘placed on an appropriate, more cost-effective form of supervised release’ – raises a fundamental question, posed among others by [DHS] Secretary Janet Napolitano herself: why were these individuals detained in the first place?” asked the ACLU.

This is a question that equally could be applied to thousands of other immigrants held in detention facilities pending deportation hearings despite having no criminal records and being low flight risks. Why haven’t they been released on community supervision?

For decades our nation’s immigration policies have been implemented with little or no regard for the resulting financial and social costs. With the economic downturn well into its fifth year, perhaps that will now change. Integral to reforming our immigration system is addressing the practice of using private, for-profit companies to operate detention facilities – particularly considering the amount of money those companies spend, through campaign donations and lobbying, to influence lawmakers who formulate immigration policy.

“I think that when people are being heavily lobbied and when there’s financial interests involved and when our representatives are benefiting from those financial interests directly through lobbying, it compromises their ability to do what’s right for taxpayers and immigrant families,” noted María Rodriquez, executive director of the Florida Immigrant Coalition.

In short, effective immigration reform will require removing the financial incentives and profit motive from our immigration enforcement and detention system. Removing immigration issues from the arena of destructive politics would also be a major improvement, but even less likely to happen.

(This article first appeared on Prison Legal News and is used here by permission)

Sources: Detention Watch Network, New York Times, www.indystar.com, Houston Chronicle, Associated Press, New York Daily News, Mother Jones, Huffington Post, The Star-Ledger, www.nj.com, www.counterpunch.com, Atlanta Journal-Constitution, www.colorlines.com, www.grassrootsleadership.org, www.truthdig.com, www.mclatchydc.com, www.cjr.org, www.truth-out.org, www.abcnews.go.com, www.federaltimes.com, www.pewhispanic.org, www.immigrationforum.org, www.californiawatch.org, www.aclu.org, www.inthesetimes.com, Washington Post, www.businessinsider.com, www.cnn.com, www.humanrightsfirst.org