IMMIGRATION POLICY AND PLANNING IN THE ERA OF MASS INCARCERATION


On November 20, 2014 after years of overwhelming pressure from the immigrant rights movement and undocumented communities, President Obama announced he was taking executive action on immigration. It was a calculated move. With less than two years before the next presidential election, President Obama is thinking of his legacy and the viability of the Democratic Party in 2016. The action provides expanded relief for undocumented youth, or “dreamers,” and undocumented parents of U.S. citizen children. It would benefit roughly 4 to 5 million of the 12 million undocumented people living in the United States.

Unfortunately the action also includes, not surprisingly, increased militarization at the southern border and a revamped and potentially harsher system of targeting immigrants who don’t qualify for relief. The president clearly stated, “we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.” This may seem reasonable and even justified to many. However, the statement not only conceals the fact that “family detention” (women and children) is expanding, it perpetuates the ongoing criminalization of immigrants and the unchecked culture of xenophobia that enables the president to make such remarks. The drive to criminalization runs in tandem with the wider culture of punishment in the United States that has targeted people of color and poor people and led to mass incarceration on a globally unprecedented scale. Today the U.S. is the world’s leading incarcerator and immigrants are the fastest growing population behind bars.

HISTORY OF THE EXPANSION OF IMMIGRANT DETENTION

The expansion of immigration detention follows a similar if somewhat delayed trajectory as the rise of mass incarceration, which grew from 300,000 people in prison in 1970 to over 2 million today. The detention of immigrants, once a little known practice, began to expand in the early 1980s. Initially several thousand Cubans and Haitians arriving on Florida’s shores were swept into newly opened detention facilities. After three decades of expansion, the detention system now captures and holds close to half a million immigrants over the course of a year (e.g., 478,000 in 2012).

Immigration policy began to increasingly emulate the criminal justice system in the 1980s when, during the height of the War on Drugs, Congress amended the Immigration and Naturalization Act to require the mandatory detention of immigrants with certain criminal convictions. This meant that their detention was automatic and compulsory, without any consideration of their circumstances. This policy expanded in 1996 under the Clinton administration with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The 1996 laws, as they are often referred to, marked a paradigm shift for immigration policy in the U.S. and dramatically increased the use of detention. This was accomplished by expanding the use of both mandatory detention and the application of the legal rubric of “aggravated felonies.” Paradoxically, many crimes considered aggravated felonies in the immigration context are neither aggravated nor felonies in the criminal context. For example shoplifting, a misdemeanor in the criminal context can be considered an aggravated felony under immigration law. Additionally, the 1996 laws rendered any non-citizen, including legal permanent residents, liable to detention and deportation.

ADMINISTRATIVE CHANGES: ICE

After the 9/11 attacks, the Immigration Naturalization Service or INS was divided into U.S. Citizenship and Immigration Service (USCIS) and Immigration and Customs Enforcement (ICE). It also moved from the Department of Justice to the newly created Department of Homeland Security. Immigration was now a national security issue. Nowhere was this clearer than in ICE’s strategic plan for 2003-2012, Operation Endgame, which stated its purpose as, “promot[ing] the public safety and national security by ensuring the departure from the United States of all removable aliens through the fair and effective enforcement of the nation’s immigration laws.”

Prior to the passage of the 1996 laws, the number of immigration detention beds in use was roughly 6,000; today it’s over 34,000. Those detained range from undocumented immigrants to asylum seekers to visa holders to legal permanent residents. Detention takes a terrible human toll on those in its grip. Immigrants in jails and detention centers lack medical and mental health care, outdoor recreation and nutritious and appetizing food.

ICE’s national detention standards regulating conditions of confinement are not codified in law; therefore they only serve as mere recommendations with ICE as the oversight body. All detention is essentially indefinite. There is no sentence, immigrants are either waiting for a hearing or to be deported and can sometimes spend months or years locked up. Largely due to the lack of medical and mental health care over 140 immigrants have died in detention since 2003.

"Detention takes a terrible human toll on those in its grip. Immigrants in jails and detention centers lack medical and mental health care, outdoor recreation and nutritious and appetizing food."

Tiombe Carlos, an Antiguan legal permanent resident who came to the U.S. when she was four, was one of the 34,000. She had a long history of mental illness and was diagnosed with paranoid schizophrenia at age 15. After serving a multi-year sentence for disturbing the peace and an altercation with a police officer she was transferred to immigration detention. She was first detained in Boston for six months, and then was moved to Pennsylvania to be closer to her family at the York County Prison, which contracts with ICE to hold immigrants. Carlos’ lawyer, her family and the advocacy group, Physicians for Human Rights, pleaded for her release on account of her mental illness and her family ties in the U.S., including a 14 year-old U.S. citizen daughter. ICE refused and in October 2013, Carlos committed suicide after being held in detention for nearly three years. She was 34 years old.

Sylvester Owino, a Kenyan immigrant who came to the U.S. in 1998 on a student visa, was detained in 2005 after serving a two-year sentence for robbery. Owino had left Kenya due to persecution relating to his political beliefs and feared that if he returned he would be tortured or killed. For this reason he petitioned for relief under the Convention Against Torture and should have been released while he awaited a ruling on his case. Despite this, ICE continued to hold Owino in detention for nine years, first in a facility in San Diego and then at the Etowah County Jail in Alabama. After recently being transferred back to California, Owino finally had a hearing before a judge who, upon reviewing his case, immediately released him on bond in March 2015.

Isolation is key to the continued use of immigrant detention. Most of these facilities are far from urban centers. Due to high demand for bed space in certain parts of the country, immigrants can be transferred hundreds of miles from their homes while they await their hearing. Many are transferred multiple times: immigrants detained in New York, for example, have been held in New Jersey and transferred to Texas or Louisiana. Throughout this process there is little possibility for contact with family members or attorneys. Unlike the criminal justice system, immigrants in detention are not afforded the right to a lawyer, with roughly 80 percent of immigrants going through their proceedings without counsel.

CONTRACT FACILITIES

York County Prison, where Tiombe Carlos spent the last years of her life, and Etowah County Jail, where Sylvester Owino was held, are two of over 200 facilities that contract with ICE to hold immigrants. ICE itself only operates six facilities nationwide and relies heavily on county and state jails and private prisons for detention. This has been a windfall for counties that are cash-strapped due to the recession. On average ICE will pay $120 per day to house someone in detention, though many counties take a lot less. To expedite the relationship rather than go through a formal proposal process, ICE signs Intergovernmental Service Agreements (IGSAs) with counties, which means there is usually no opportunity for public comment. Beyond renting out space in existing county jails, many counties have built facilities to attract contracts, issuing bonds worth tens of millions of dollars to pay for the large and costly new jails. Securing these lucrative federal contracts initially guarantees job growth. However, many counties ignore the studies that have shown that in the long-term prison building in rural communities discourages economic development due to the stigma related to being a “prison town.”

Due to the high cost of building and operating prisons, some counties will in turn contract with private prison companies, such as Corrections Corporation of America (CCA) and GEO Group to run their facilities. These companies will also directly contract with ICE and are deeply vested in the continued use of immigration detention, as nearly 60 percent of all detention beds are privately-run. Both CCA and GEO have lobbied to influence immigration policy and to support funding for immigration detention. In a 2007 SEC filing, CCA stated, “We are dependent on government appropriations.... The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”

Just two years after this statement was made by CCA, the late Senator Robert Byrd wrote language into the DHS Appropriations bill requiring a minimum number of immigrants be detained at any given time. The language, which is now referred to as the “bed mandate” or “immigrant detention quota,” currently states, “[t]hat funding made available under this heading shall maintain a level of not less than 34,000 detention beds.” This means that despite current efforts for reform, such as executive action or comprehensive immigration reform, the population in detention will either stay the same or continue to grow.

NORTHERN TRIANGLE IMMIGRATION

Last year, as tensions in the Northern Triangle region of Central America (El Salvador, Guatemala, Honduras) became critical, thousands of Central American women and children fled to neighboring countries as well as to the southern border of the U.S. Despite initially referring to this situation as a humanitarian crisis, President Obama warned Central Americans that if they came they would be turned back or be detained first and then sent back. The practice of holding women and children in detention had mostly ended in 2009 due to popular protest. Last summer in response to the increase in Central Americans at the border, ICE opened two new detention facilities to house families. The expansion has continued apace and the current projection is that by mid-2015, only one year after the crisis, some 3,000 beds will be used for family detention, whereas previously the number had been decreased to only 100. The average age of children in these facilities is just 6 years old. Despite having recognized and legitimate claims to asylum, which should ensure their release, many women in family detention centers are often held without bond or given excessively high bonds in order to “send a message” or deter further migration from the region.

"What’s clear is that the system will not be reformed through piecemeal efforts that only provide relief for some."

As we near the end of President Obama’s tenure, his legacy on immigration will no doubt be mixed. On the one hand, Obama gave hope to many by announcing relief for dreamers and undocumented parents of U.S. citizen children. On the other, he detained more people than any other president in U.S. history and his administration continues to target immigrants for detention and deportation by focusing primarily on non-citizens with criminal convictions and recent border crossers. What’s clear is that the system will not be reformed through piecemeal efforts that only provide relief for some. The reliance on detention has become a part of the fabric of the U.S. and in order to fully address its impact we must reverse course and stop treating immigration as a threat to public safety or national security for which prisons and deportation are the answer.

Silky Shah is the Co-Director of Detention Watch Network, a national coalition of organizations and individuals working to expose and challenge the injustices of the U.S. immigration detention and deportation system. Silky has worked as an organizer on issues related to mass incarceration, racial justice and immigrants’ rights for over a decade. Prior to joining DWN in 2009, she worked as an organizer with Grassroots Leadership fighting the expansion of immigrant detention centers on the U.S.-Mexico border and at the independent news program Democracy Now.

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