National Immigration Forum

Practical Solutions for Immigrants and America

Blog & Updates

A Civil Detention System: Would Immigrants Have “Special” Rights?

December 11, 2009 - Posted by Maurice Belanger




Yesterday, the House Homeland Security Committee, Subcommittee on Border, Maritime and Global Counterterrorism held a hearing on the U.S. immigration detention system titled, “Moving Toward More Effective Immigration Detention Management.”  As is usually the case in a Congressional hearing, the question and answer session after the prepared statements of the witnesses provided an opportunity for Members of Congress to blur the facts (or, assuming a less sinister motive, to merely show that they have been poorly briefed on the issues).


To briefly review where we are on the issue of immigration detention, Immigration and Customs Enforcement (ICE) has embarked on an effort to reform its immigration detention system to reflect the fact that many of the individuals in its custody have committed only civil immigration violations.  Immigrants in ICE custody will be sorted out and released, placed in alternatives to detention programs where their appearance for legal proceedings can be ensured, or detained in facilities appropriate to the risk they present.  Non-criminal, non-violent immigrant detainees will not be jailed as if they represent a risk to society.  In other words, it is not appropriate to house someone who is being detained because their immigration papers aren’t in order in the same kind of facility used to house murderers and rapists. 


At the hearing, Representative Mark Souder (R-IN) translated this news into a concern that we would be treating non-citizens “better” than citizens who are detained.


“Non-citizens held in detention centers have broken the law. They should not be held in detention centers that are better than we give U.S. citizens.”


Let’s compare apples to apples.  Unlawful presence is a civil violation.  How do we treat citizens who have committed civil violations?  Generally, we don’t put someone who speeds (for example) in a jail with murderers and rapists; we don’t put them in jail at all.  In general, someone caught speeding will get a warning or a ticket and then be sent on their way.  (Someone may go to jail if they are exceedingly reckless, but that is rare.) 


Another category of detainees have entered the country illegally.  That is a crime—a misdemeanor.  A comparable misdemeanor for a citizen is something like loitering.  Again, this is not something for which we generally throw people in jail.


So the argument that non-citizens who may end up in low-security facilities will be getting a “better deal” than citizens is simply not true.  Citizens who have committed similar civil or low level criminal violations are not usually jailed at all.


ICE would continue to detain in secure facilities those who represent a threat to others.  According to the Migration Policy Institute, 11 percent of individuals in immigration detention with criminal records had committed violent offenses.  More than half of immigrants in detention have no criminal record. 


Another fallacy that came up in the hearing about non-citizens in detention was Mr. Souder’s assertion that “American taxpayers pay for their lawyers.”  False.  Non-citizens in removal proceedings are allowed to be represented by an attorney at their own expense, but most immigrants can’t afford one.  (This article from the Migration Policy Institute makes the case that immigrants in removal proceedings should have the right to government-provided representation, given the very serious consequences of removal proceedings, including banishment from the U.S., family separation, and the loss of a job or business.)  Immigrants who are not represented by an attorney are much less likely to be awarded whatever relief from removal they may be entitled to.


One of the witnesses, Mark Krikorian of the Center for Immigration Studies (an anti-immigrant group), raised another issue that requires correction.  He said that “virtual all illegal aliens have committed multiple federal crimes” such as “crossing the border illegally” “using false documents” etc.  Therefore, he said, “a very large portion of the illegal population [would not be eligible for legalization].”


Wrong again.  Any comprehensive immigration reform legislation would, of course, contain provisions that would waive bars to admission that are based on violations of immigration provisions having to do with an applicant’s illegal entry, loss of legal status, or working without permission.  Obviously, it would make no sense to create a legalization program and then make nearly everyone ineligible for that program.


Side note: The Forum's Senior Legal Advisor, Brittney Nystrom, testified at yesterday's hearing.  Her testimony can be found here.


Photo by Flickr user Still Burning.

Crossroads Campaign Solutions