National Immigration Forum

Practical Solutions for Immigrants and America

Blog & Updates

It’s About Time

August 07, 2009 - Posted by Maurice Belanger

For the last several years, immigration advocates, including the National Immigration Forum, have raised serious concerns about the treatment of immigrants in the vast detention system used by Immigration and Customs Enforcement (ICE).  The system includes federally-run facilities, facilities run by private contractors, and state and local jails with which ICE has entered into agreements.  ICE negotiated with the American Bar Association to develop a set of standards in 2000, which were later revised into the “Performance-Based National Detention Standards” in 2008 (yet to be implemented).


The standards are only worth something if they are observed.  When they are not, there have to be consequences.  As a set of standards, they do not carry the same weight as law or regulation.  The standards are inconsistently observed and, in 2007, advocates petitioned ICE to put the standards into regulation.  ICE didn’t respond immediately to the petition.


Meanwhile, the detention system developed into a public relations nightmare. Several media outlets ran stories of immigrants dying in immigration detention when their medical problems were neglected.  Stories appeared in the New York Times and the Washington Post, which ran a lengthy series exposing the immigration detention scandal.  These exposés led to an oversight hearing in the House Judiciary Committee in June of 2008 and another in the House Appropriations Committee in March of 2009.


So far this year, a number of reports have been released from governmental oversight agencies and non-governmental organizations documenting in some detail problems with the immigration detention system.  These reports, many of which are linked on our Detention and Enforcement page and summarized in this digest, kept a spotlight on the dysfunctional detention system.


Meanwhile, as the government continued to defer a decision on putting detention standards into regulation, advocates went to court.  On June 25th, a judge ordered the government to respond to the petition.  On July 24th, DHS decided it would not write detention standards into regulation, insisting that the Performance-Based National Detention Standards were “the appropriate mechanism to improve detention facility management and ensure compliance with detention standards.”


The next week, two bills were introduced in the Senate that would force detention changes by putting some standards into law.


On July 30, Senators Menendez (D-NJ), Gillibrand (D-NY), and Kennedy (D-MA) introduced the Protect Citizens and Residents from Unlawful Detention Act, S. 1549.  Among other things, the bill would establish screening mechanisms so that U.S. citizens and vulnerable populations, such as children and pregnant women, and others who are swept up in immigration enforcement operations are considered for alternatives to detention. 


Simultaneously, Senators Menendez and Gillibrand introduced S. 1550, the Safe Treatment, Avoiding Needless Deaths, and Abuse Reduction in the Detention System Act (the “Strong STANDARDS” Act).  Among other things, this bill would require DHS to provide access to adequate medical care, establish protocols when ICE transfers immigrants away from family and counsel, ensure access to functioning telephones inside detention centers, and mandate other improvements to the immigration detention system.


A third bill was introduced on August 6th. Senators Lieberman (I-CT), Kennedy (D-MA) and Akaka (D-HI) introduced the Secure and Safe Detention and Asylum Act.  The legislation would implement recommendations first made in 2005 in a Congressionally-mandated report by the U.S. Commission on International Religious Freedom and improve detention standards (including limits on family detention and judicial oversight of detention decisions). 


With this history, we have the announcement by ICE yesterday.  The agency will be creating an Office of Detention Policy and Planning (ODPP), headed by Dora Schriro, the current Special Advisor to Secretary Napolitano on Detention and Removal Operations. With the assistance of detention and health care experts, the Office will “design and plan a civil detention system tailored to addresses (sic) ICE's needs.”  (Read more in our Policy Update and Press Release.)


Many of the immigrants in our immigration jails have not committed any crime, except that they are here without authorization and are working without permission.  They are often thrown in jail alongside criminal inmates serving sentences or awaiting trial.  People who are working without authorization, who are accused of civil immigration violations, should not be treated like murderers and thieves.  So it certainly makes sense to “design and plan a civil detention system tailored to address ICE’s needs.” 


ICE will be working with two advisory groups, composed of local and national organizations interested in the detention system.  Hopefully, with the help of outside expertise, we will see improvements in the way we treat immigrants in the government’s custody. 


Underlying the detention crisis, though, is the crisis of our broken immigration system.  Hundreds of thousands of immigrants who spend time in our immigration jails should not be there in the first place.  They are not criminals.  They are here to work and pursue the American dream.  We should be giving them work visas, not jail time.  Until we have immigration reform, ICE will continue to be forced to deal with the consequences Congressional inaction—what to do with people who are caught here illegally making a better life for themselves.

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