Immigration authorities in many countries have the power to detain non-citizens based on an individual's migration situation. Immigration detention can happen at different times. This is a civil or an administrative power that operates differently from the powers given to criminal courts and the police. The United States government detains thousands of immigrants under the control of customs and border protection. Individuals accused of unlawful entry into the United States are detained in the process of deportation and removal from the country or up to when their asylum claims are received. If you or a loved one is facing immigration detention in California, the California Immigration Attorney can advise you on the way forward.
Immigration Detention Explained
Immigration detention refers to the deprivation of liberty of a non-citizen in a particular country for migration-related reasons. It can happen in any country if the migration authorities meet with an individual for the first time, whose immigration status or identity cannot be established. The first meeting could be when the authorities conduct a raid, at the seaport, airport, at the border point, or meet an individual in the community without the necessary documents.
Some countries may detain individuals as the nature of their claims to enter or remain in the country is established, or their identity is verified. Some other countries could continue to detain an individual for the period it takes for their migration application to be processed. The detention could extend for the entire time it takes to process substantive claims.
Article 4 of the Optional Protocol is also defined as Immigration detention to the Convention against Torture as placement or imprisonment of an individual in a private or public custodial setting. The individual cannot leave the detention center at will as ordered by the administration, judiciary, or any other authority. At times, migration authorities impose immigration detention if an immigrant is being deported, and all claims to remain in the country have been rejected.
According to international law, immigration detention should only be employed in a proportionate, reasonable, necessary, and last resort to a legitimate government objective. A legitimate government objective may authorize the detention of an immigrant for the following reasons:
- If the immigrant poses a danger to the public or their safety
- If the immigrant poses a risk of absconding from future administrative processes or legal proceedings
In both cases, immigration detention should only be employed after community-based, and non-custodial alternatives to detention have been explored.
The application of unlawful immigration detention is increasing and hindering the management of complex migration. Every year, millions of migrants, asylum-seekers, and refugees are at risk of immigration detention worldwide. Migrants, asylum-seekers, and refugees are often subjected to unlawful detention or arbitrary and could be detained for years or months in unhygienic and overcrowded conditions below international standards.
Immigration Detention in the United States
In the United States, immigration detention began in the 1890s at Ellis Island. This facility was built as permanent detention for non-citizens during the Second World War until the 1950s when it was abandoned. The mass migration of asylum-seekers from Haiti in the 1980s made President Ronald Reagan re-introduce the detention facility. President Bush Senior also established a regional location to hold the influx of undocumented immigrants fleeing political and economic conditions in Haiti.
The United Nations High Commissioner for Refugees (UNHCR) identified countries like Trinidad and Tobago, Honduras, Venezuela, and Belize to accommodate the Haitians temporarily. However, the United States forcibly deported 538 Haitians to Haiti because the Coast Guard became overwhelmed by November 18, 1991. The other group of immigrants became difficult to control, and the Coast Guard decided to take them to the U.S naval in Guantanamo, Cuba. They were pre-screened in Guantanamo for asylum in the United States.
President Bill Clinton officially authorized mandatory immigrant detention in 1996. This came due to the Effective and Antiterrorism Death penalty enactment, Illegal Immigration Reform, and Immigrant Responsibility Acts. The Acts gave the Attorney General in the U.S discretion to extend immigration detention. This caused increased immigrant detention from 8,500 to 16,000 in 1996 through 1998, and by 2008, the number went beyond 30,000 immigrant detainees.
The United States possesses the largest immigration detention system globally, according to the Global Detention Project statistics. The U.S Immigration and Customs Enforcement Agency (ICE) was established under the Department of Homeland Security in 2003. ICE uses investigative techniques to apprehend illegal immigrants, enforces the United States customs and immigrant laws, detaining the law offenders, and deporting illegal immigrants.
The department of Detention and Removal operations created within ICE oversees the deportation and detention of immigrants. There are over 200 detention centers operational in the U.S, where the ICE detains the immigrants. The centers include juvenile detention centers and shelters, local jails, state jails, and privatized facilities.
Concerns on Immigration Detention Centers in the United States
Various human rights organizations like the American Civil Liberties Union, Amnesty International, and a series of New York Times reports have expressed concerns with the management of detention centers by ICE. The reports reveal unprofessional or inadequate medical care and human rights abuse instances in these detention centers. The reports have also revealed several immigrants' deaths, and the ICE has been accused of concealing this information.
However, the ICE has responded to the accusations by publishing 166 immigrants who died under their detention between 2003 and 2016. The ICE alleges that they provide state-of-the-art medical care and maintain detainees' best quality of life while in custody. Zoe Lofgren, a representative of the United States Congress, introduced the Detainee Basic Medical Care Act in May 2008, but no efforts have been made to enact the bill since then.
Monitoring of Immigration Detention Centers
Often, none or little independent oversight characterizes immigration detention. Immigration detention in many countries is one of the areas that are opaque in public administration. Violations of human rights happen in these circumstances, and the psychological and physical impacts of very few immigration detention centers are documented. Children and women are particularly prone to abuse and violence in immigration centers. Statistics reveal that even short time immigration detention can have detrimental mental and physical health consequences. Many immigrants are detained in closed camps and in administrative detention centers all over the world with:
- Serious protection problems for refugees within closed refugee camps
- Conditions that do not meet international human rights standards
- Restrictions on access to asylum for individuals who require protection from severe human rights abuses
Who is Detained?
People with disabilities, children, the elderly, and men are detained against their will in immigration detention. They are detained in hotels, containers, ships, police stations, jails, and removal centers awaiting removal from the country or ruling in their cases. Even if you have never committed any offense, you may be detained with criminals. After the ruling has been made, it may take years or months to effect while you wait in unhygienic and overcrowded conditions.
Often, detention centers in the United States host large populations of refugees and impose significant rules on resident refugees' movement. For instance, for you to leave a camp, you must obtain a permit. You can go out of the camp at a particular time and only travel to a set distance. You risk arrest and imprisonment at times for years if you fail to adhere to the terms of permission. You may be detained in these centers without the freedom to move for years. Children and grandchildren are born without obtaining the freedom to leave these centers.
The Process of Immigrant Detention and Removal
In the United States, four ICE divisions work to enforce immigration laws, investigate unlawful immigration, detain, and deport illegal immigrants. These divisions include the Office of International Affairs (OIA), Office of Intelligence (Intel), Office of Investigations (OI), and Enforcement and Removal Operations (ERO). Within ICE, ERO operates eight detention centers called service-processing centers, and it deals directly with immigrant detention.
Immigrant detainees in the U.S are given a unique identification number called an Alien Registration Number (A-number). You may be sent to the private, federal, state, or county prison, where you might stay until your deportation.
Secure Communities program was established within ICE in 2007 to identify criminal immigrants, categorize them based on the crime severity, and initiate the necessary process to deport them by increasing efficiency. Secure Communities program uses modern technology, particularly biometric identification techniques, to identify undocumented immigrants.
This technology was first used in Houston and Texas in 2008. When the program was started in 2008 through March 2011, 140 396 criminal immigrants were booked into detention resulting in 72,445 deportations. As of April 2011, 1,210 out of 3,181 jurisdictions in the U.S were using the Secure Communities' biometric sharing capability. Through the Secure Communities program, the fingerprints of every immigrant arrested and booked are checked against DHS records and the FBI criminal history records.
The ICE could determine whether immigration-enforcement action is needed if the fingerprints match the DHS records. The ICE could put a detainer on the immigrant for up to 48 hours before their release. The ICE could come to interview the immigrant or take them into detention.
The ICE Immigrant Detention and Private Prison Contractors in the U.S
The Department of Homeland Security (DHS) in the United States began to rely upon diverse set detentions to keep up with the demand for immigrant detention beds. At the beginning of 2003, detention centers like Federal prisons, State jails, Local jails, and private prison contractors were identified to hold the increasing numbers of immigrant detainees. The Congressional Appropriators from 2009 to 2017 recommended the number of immigrant detention beds that ICE was to provide. The ICE provided around 33,400 detention beds. The ICE also approached private prison contractors to hold the influx of immigrant detainees.
Congress gave the ICE money at the beginning of 2017 to detain a daily average population. In the financial year 2019, ICE received funds to detain 40,520 immigrants each day. In 2019, the average daily detention was 45,000 immigrants. This made the private prison contractors operate 73% of the entire immigrant detention system, including nine of the ten largest detention centers in the United States.
Most of the immigrant detention centers operated by private corporations have contracts with ICE. However, due to lack of oversight and accountability in these detention centers, asylum seekers detained are 40% less likely to get relief than those in ICE detentions. Human rights abuses also went unnoticed or without being uncovered because the government fails to monitor.
Private prison corporations are based on profit maximization, meaning that the more immigrants detained, the more money for the private prisons contracted. This attracted the attention of several politicians who tried to alter or end the terms of privatization. The congress representative Raul Grijalva introduced the Justice was not for Sale Act in 2015. The bill was co-sponsored by third other democrats aiming to eliminate private immigrant detention and transfer their operations to the federal government. The phone calls' cost was the leading complaint, and the bill recommended multiple telecommunication companies to offer phone services.
Immigrant Detention and Pastoral Response in the U.S
The Conference of Catholic Bishops' Migration and Refugee Services (CCB/MRS) in the U.S has expressed concerns about immigrant detention growth. Although the CCB/MRS supports the government to enforce immigration laws, they have asked the U.S government to reform the immigrant detention system.
This is because the current system does not observe human dignity, and it inflicts pain on many immigrants and their families. While addressing the government through their letter titled Strangers No Longer, they acknowledged the government's right to protect and control its borders. However, they expressed their dissatisfaction with some tactics and policies the government use to meet its objective. The Bishops also challenged the various methods used to detain immigrants that seem inappropriate. They alleged that the current system of immigrant detention threatens family unity. The CCB/MRS called for reforms in immigration detention centers to reduce family separation, especially of young children from their parents.
Proposed Alternatives to Immigration Detention in the U.S
In financial 2020, the Department of Homeland Security (DHS) estimates that immigration detention could cost taxpayers $269 per bed for those in family detention, $130 per bed for those in adult detention, and a total of $2.5 billion the whole year. However, there are options for immigration detention that have been proposed, which are more cost-effective and humane.
Some proposed alternative programs could cost the government as low as 70 cents per immigrant detainee per day. Others could cost $36 per day, like the former Family Case Management Program and Electronic Monitoring programs that cost $ 4 per day for every immigrant detainee. If the U.S government employs such options, immigrant compliance to orders and immigration proceedings could be useful.
The Conference of Catholic Bishops' Migration and Refugee Services (CCB/MRS) works to stop immigrant detention. They work inconsistent with the words of Pope Francis by advocating the use of more Alternatives to Detention programs (ATD). Along with its catholic partners, the CCB/MRS established a case management-based ATD program in Louisiana, Boston, and Massachusetts in 2014. The program worked together with the Department of Homeland Security (DHS) by providing community support to needy people like victims of crime who would otherwise be detained, torture victims, asylum seekers, elderly, and pregnant women.
The hallmark of this program was the comprehensive case management coupled with various services provided, which enabled immigrants to become productive and self-sufficient members in the U.S. After serving numerous immigrant families, the program ended in 2015.
The CCB/MRS claims that if such programs were expanded, human dignity would be promoted. The programs would also reduce the financial burden on taxpayers and family separation. The CCB/MRS urges the U.S government to expand ATD programs that could utilize case management, and they call on lawmakers to revise the mandatory immigration detention policy.
Inconsistent with the CCB/MRS, the Immigration and Customs Enforcement (ICE) agency engaged in the Family Case Management program in five cities from 2015 to 2017. Sadly, in June 2017, the program was cut short. Currently, there have been efforts to re-introduce the Family Case Management Program in the financial year 2019. The efforts are being made after the Department of Homeland Security (DHS) signed into law the Consolidated Appropriations Act on February 15, 2019.
How Long are Individuals Held in Immigrant Detention?
The law in the U.S demands that the immigration authorities transfer unaccompanied children, immigrants to the custody of the Office of Refugee Resettlement (ORR) within 72 hours of their arrest. As of December 9, 2019, adult immigrants were detained for an average period of 55 days. Those held awaiting their immigration court proceedings may take a longer time before a release from detention. However, the National Standards on Transport dealing with detention, search, and escort demands the immigrants to be held for the shortest time possible. They recommend that immigrants be detained for the time taken to process the release, transfer, or repatriate them.
The May and July 2019 survey shows that 200 families were detained in immigration detention centers for a longer period. The DHS also reveals that in June 2019, a significant percentage of minors were detained for more than 72 hours in detention centers. The DHS records also show that adults were detained for over three months in congested cells in June 2019.
Legal Services for Immigrant Detainees in the United States
Immigrant detainees in the United States have limited access to legal representation. Detention centers are often established in remote areas throughout the U.S, where it is impossible to access an attorney. The right to a phone call in detention centers is left to the discretion of local Customs and Border Protection (CBP) offices. Therefore, you may have no means to contact the attorneys even if you have one. The government does not allow your family to access you while in detention. As a result, many detainees are held in immigrant detentions for a long time without seeing their loved ones.
Attorneys are not given a chance to access immigration detention centers even though their presence in custody can greatly impact your case. While in detention, you are supposed to make statements with legal implications, and you are coerced to sign legal documents in English, the language most immigrants do not understand. The immigration agents threaten the parents who are separated from their children that they risk not seeing the children if they fail to sign the legal documents. Unfortunately, the documents turn out to be renouncing their union with their children before deportation.
How can People Stand in Solidarity with Immigrant Detainees and Stop Immigrant Detention?
People of goodwill in countries experiencing an influx of immigrants can help them and stop immigrant detention by doing the following:
- Joining pastoral care or visitation groups in their countries and visit detention centers
- Raising awareness about immigrant rights, effects of family separation, and sharing material things with them
- Helping families that have been separated due to immigration detention by taking them to detention centers to see their loved ones, preparing meals for them, any other assistance
- Requesting the president through leaders to use discretion and stop detaining vulnerable populations.
- Calling on the leaders to fund community-supported ATD programs administered and run by NGOs instead of immigrant detention
When Your Loved One is in Detention
When you find out that your loved one is in detention, what is the first step you should take? You can look up the ICE detainee locator website to find out about the detainee's exact location. While searching, you should have the detainee's Alien number in hand. At times, you may have to try different names or spellings of names. However, if someone was recently detained, the ICE's website may not be updated with the detention information.
You may also call the detention officer and explain your relationship with the detainee. The officer will guide you on contacting the detainee and how to send them the needed items. However, you should be careful about the information you reveal to the officer. You should not give information that might be used as evidence against the detainee.
The most important person is to take the detainee out of detention. However, at times, cases in the immigration court move faster when a person is detained. In other instances, it's better to get out of immigration detention and have a judge handle the case later. Whatever decision you make, your immigration attorney will assist you.
Find a California Immigration Attorney Near Me
The release from immigration detention could take months or even years, depending on the type of relief available to a detainee. However, with the help of an immigration attorney, the process will be faster. If you or your loved one is facing immigration detention, the California Immigration Attorney can help you seek a speedy release. Contact us at 424-789-8809 and speak to one of our attorneys.