Manual Immigration-Related Detention: Current Legislative Issues

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ICE pays for every bed at some locations, regardless of whether it is occupied, whereas at others the daily rate is reduced if a certain occupancy level is achieved.

Furthermore, the average cost per day does not include other expenses ICE incurs, such as on-site and off-site medical care for detainees, transportation between detention facilities, education provided to detained minors, facility rent, and other services. By comparison, the ATD program costs range from twelve dollars to twenty-two dollars per day.

Even though this figure does not include other costs incurred by ICE, including compensation of ICE personnel assigned to the ATD unit and fugitive operations activities, Schriro, supra note 78, at One of the core issues with prison privatization is that competition for profits can lead to a push for greater incarceration. Many of these private companies even lobby Congress for more detention, to increase the number of detainees housed and, correspondingly, their profits.

Thus, rather than focus on humanitarian and medical concerns, these private companies are principally concerned with profit maximization:. Detention-for-dollars puts perverse financial incentives in play. This insidious incentive cuts directly across concerns about compliance with detention standards that were created to foster a decent, humane custodial environment for the rapidly-growing number of people who are subjected to detention. Significantly reducing the number of detainees will hurt these private companies because it will largely obviate the need for new prisons and detention centers.

A few of the reforms do have a likelihood of reducing costs. For example, ICE hopes to cut medical care costs of transportation by minimizing transfers. But, as discussed previously, one of the largest problems with the current immigration detention system is the perverse incentive given to private contractors to push for greater incarceration: their profits increase as the number of detainees rises. As discussed, ICE has no present plans to reduce the number of aliens it detains. ICE does not own the facilities required to detain the number of illegal immigrants it retains in its custody, and thus relies on these facilities and contracts to do so.

If it were to detain these aliens on its own, it would need to build facilities to hold them, which would come at a high cost. If ICE chooses to continue to contract with local and county facilities owned and run by companies principally concerned with high profits, the costs of detention will not decrease considerably. Thus, the current reforms do not minimize the high costs of detention because they fail to address the significant problem of competition for profits among private contractors. Therefore, because the reforms neglect to acknowledge the need to reduce the number of detainees, the costs of detention will remain astronomical.

ICE should also detain fewer aliens because the current system is not designed to handle the rising number of detainees. Most ICE facilities were originally built—and currently operate—as prisons. In some cases, ICE detainees are housed at facilities with pretrial and sentenced inmates. Movement within the facilities is largely restricted. Thus, ICE treats a civil population of detainees like criminal inmates. This lack of proper infrastructure and personnel has led to numerous humanitarian and due process violations. Further, when detainees die in some of these facilities, officials cover up their deaths because they do not want bad publicity.

Times , Jan. The documents discuss many of the deaths in detention recorded by ICE since October For example, the documents indicate that an investigation into the suicide of a twenty-two-year-old detainee named Nery Romero at the Bergen County Jail in New Jersey concluded that unbearable, untreatable pain had been a significant factor in his suicide. The investigation also revealed that jail medical personnel had falsified a medication log to show that Mr. Romero was already dead. Originally from Ghana, Mr.

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Owusu arrived in the United States on a student visa in and was a long-time, lawful permanent resident. Bernstein, supra note Immigration authorities detained him in on the basis of a conviction for misdemeanor battery and retail theft. Owusu was a diabetic with high blood pressure who died of a heart ailment weeks after dismissal of his last appeal opposing deportation.

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The Phoenix field-office director wrote to her subordinates that she was confused as to how Mr. This story is another illustration of the violations of due process rights occurring at immigration detention facilities. ICE held Mr. Owusu for two years in a detention center on the basis of a battery conviction twenty-five years earlier.

If so, this was a violation of Mr. Again, the DHS reforms do address serious problems with the immigration detention system. In admitting that detainees are a civil, not criminal, population, the reforms recognize that they should be housed in a system designed for such, rather than in centers tailored for hardened criminals. The reforms also take great steps to address human rights violations and related concerns, most notably through greater access to medical care.

The reforms recognize many inadequacies of the current system and outline a number of necessary steps to address those issues.

Immigrants' Rights | American Civil Liberties Union

However, while these reforms will hopefully improve the conditions of detention for those already detained, they do little, if anything, to address why so many aliens are being detained. Thus, even complete success in implementing the current reforms only addresses two symptoms of the immigration detention problem—the condition and the oversight of the detention centers. The reforms fail to target the fundamental issue: why ICE is detaining such large numbers of aliens. To do so will require that Congress and ICE work together to address the root source of the problem.

The current immigration detention reforms fail to address the heart of the immigration detention problem; they merely act as temporary band-aids.

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  5. They only change the condition of the system as it currently stands. Instead, meaningful immigration detention reform must focus on the root of the problem: why ICE is detaining more immigrants in the first place. On the other hand, many advocate groups go too far in the other direction and argue that mandatory detention should be completely eliminated. Special Rapporteur Denounces U.

    Immigrant Detention System Mar. A large segment of people detained by [ICE] have not been convicted of any crime. In order to truly reform and improve its immigration detention system, DHS must reform the ICE enforcement programs that are herding masses of people into ICE detention every day. However, the continuing rapid increase in immigration-related arrests across the United States will undermine even the best-laid plans to improve detention conditions.

    DHS reform initiatives are already being outpaced by federal and local programs that sweep up individuals who violate civil immigration laws but are neither criminals nor threats to our communities. There would be massive public outcry if certain categories of aliens, such as those who have committed violent offenses, were released into the community.

    Furthermore, this approach would be difficult to administer, largely due to limited resources. Another problem with this approach is that it would give too much power to government bureaucrats. If ICE were to give each alien an individualized determination, it would largely erode any legislative power over detention determinations because the agency would be making all the decisions on the ground. The Supreme Court has long held that the federal government, and Congress in particular, has the power to control immigration.

    Other commentators argue that detention is necessary for three reasons. First, detention is necessary to prevent people from absconding. As one commentator points out, approximately one-third of those not detained fail to appear for their removal hearings. Second, in certain situations, aliens must be detained to protect the public safety. But as Stephen Legomsky argues, certain classes of aliens are not necessarily any more of a danger to the community than others:.

    Arriving passengers found inadmissible, asylum seekers in expedited removal proceedings, and those people whose removal orders have been finalized do not pose any systematically greater threat to the public safety than does anyone else who is suspected of failing to meet our immigration criteria. The third rationale for detaining illegal immigrants is to deter future immigration violations. Legomsky argues that this rationale might be somewhat applicable to aliens that fall into mandatory detention categories, such as asylum claimants in expedited removal proceedings, but has no practical application to aliens removable on either criminal or terrorist grounds.

    This Comment adopts a middle ground wherein certain categories of illegal immigrants should still be mandatorily detained, while the rest of the undocumented immigrant population should be subject to individualized determinations.

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    Those who are not a flight risk and pose no danger to the community should be released pending their proceedings. To accomplish this requires a combination of congressional and agency action.

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    To lessen the number of detainees in the system, Congress must act to reduce the categories of mandatory detention to pre levels. The categories added by statute since drastically increased the number of aliens subject to mandatory detention, many of whom pose no risk of flight nor danger to the community and have committed only minor, nonviolent offenses that now constitute aggravated felonies under the new statutes. Little evidence suggests that detaining these aliens is keeping the community safer or preventing them from fleeing:. When Congress imposed mandatory detention through [8 U.

    In other words, Congress found that it is necessary to briefly detain even those aliens who pose absolutely no risk at all in order to avoid the risks posed by other aliens.

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    Rather, Congress should draw the line at those who commit violent offenses. Aliens who commit violent crimes, such as murder and rape, should be mandatorily detained, while those who commit minor, nonviolent offenses, such as shoplifting, should not be detained unless proven to be a flight risk or danger to the community.

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    These new classifications will require that ICE give each alien not subject to mandatory detention an individualized determination of her risk to the community and her risk of flight. Cole, supra note 72, at He states: If the alien poses a flight risk, his detention may be necessary to ensure that he will be around if and when a final removal order is effective. If the alien poses a danger to the community, his detention may be necessary to protect the community while his legal status in the United States is resolved.