On August 6, 2009, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton announced plans for sweeping reforms of the immigration detention system. 

On the occasion of the fast-approaching one year anniversary of the announcement of major detention reforms at ICE, the agency and detention advocates have an opportunity to reflect on the progress to date.  Although there have been some accomplishments on detention reform, there is a long way to go before the system can be characterized as civil and humane.  (ICE lists its own perspective on its achievements here.)

One aspect of the promised reforms launched last week: ICE’s Online Detainee Locator System. 

For years, many immigrants taken into ICE detention have been whisked off and effectively disappeared, as family and attorneys struggled to find them in the maze of ICE’s vast detention system.  With the Online Detainee Locator System (ODLS), anyone can search for a detainee by name and country of birth, or Alien Registration Number and country of birth.  The locator will report whether the detainee is currently in ICE custody or not, and provides information about what facility the detainee is in.  If an individual has been released from ICE custody within the last 60 days, the locator provides the telephone number for the ICE field office with jurisdiction over the former detainee. 

The ODLS should result in significant improvements in detention management and transparency for the agency.  Given the huge proportion of detainees that are transferred between facilities, often multiple times, during their detention, advocates hope that the ODLS will greatly reduce the previously widespread problems of detainees functionally vanishing, leaving families desperate to know what has happened to their loved ones, and frustrating attorneys with hours of dead-end phone calls trying to locate their clients.  There are limits to the locator system.  One, for those searching by name, the spelling of the detainee’s name must exactly match ICE’s detention records, down to the hyphens.  Hopefully, searchers will keep guessing alternative spellings if they don’t have a hit on the first try.  Secondly, ICE’s track record on the accuracy of detainee information has not instilled faith in the ability of the agency to keep track of all their detainees.  Third, the ODLS is inaccessible to anyone who lacks computer and internet access; there is no telephonic option.

Unfortunately, more people than ever before have a need to use the ODLS to locate a member of their family or community.  The Obama administration is detaining and deporting immigrants in greater numbers than ever before.  For the hundreds of thousands detained and deported in just the last two years, the ODLS comes too late to have helped their families find them in detention or try to find them a lawyer.  

A major problem with the detention system that has yet to be addressed is the incarceration of mentally disabled detainees.  Many of these individuals are held by ICE in unsafe conditions, while their cases are indefinitely continued because they are unprepared to represent themselves in immigration court.  As part of a large study on people with mental disabilities in the immigration system, Human Rights Watch (HRW) interviewed over 100 mentally impaired detainees, several of whom had been in detention for more than a year, although 2/3 of HRW’s interviewees did not even know when they had entered ICE detention.  Detainees with mental illness or cognitive disabilities, an estimated 15% of the entire detained population, often end up in segregation, the agency’s term for solitary confinement, as a result of their disability.

ICE recently directed its personnel against detaining individuals with medical or mental illness in some instances.   A June 30, 2010 ICE memo on civil immigration enforcement priorities stated that ICE field office directors should not “expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.”  It’s too soon to see what results this memo can bring.  We hope that de-prioritizing the confinement of nursing mothers and seriously ill immigrants will be an easily obtainable outcome.  It is long overdue.

Image by Flickr user 710928003.

 

On August 6, 2009, DHS Assistant Secretary for Immigration and Customs Enforcement John Morton announced plans for sweeping reforms of the immigration detention system. 

On the occasion of the fast-approaching one year anniversary of the announcement of major detention reforms at ICE, the agency and detention advocates have an opportunity to reflect on the progress to date.  Although there have been some accomplishments on detention reform, there is a long way to go before the system can be characterized as civil and humane.  (ICE lists its own perspective on its achievements here.)

One aspect of the promised reforms launched last week: ICE’s Online Detainee Locator System. 

For years, many immigrants taken into ICE detention have been whisked off and effectively disappeared, as family and attorneys struggled to find them in the maze of ICE’s vast detention system.  With the Online Detainee Locator System (ODLS), anyone can search for a detainee by name and country of birth, or Alien Registration Number and country of birth.  The locator will report whether the detainee is currently in ICE custody or not, and provides information about what facility the detainee is in.  If an individual has been released from ICE custody within the last 60 days, the locator provides the telephone number for the ICE field office with jurisdiction over the former detainee. 

The ODLS should result in significant improvements in detention management and transparency for the agency.  Given the huge proportion of detainees that are transferred between facilities, often multiple times, during their detention, advocates hope that the ODLS will greatly reduce the previously widespread problems of detainees functionally vanishing, leaving families desperate to know what has happened to their loved ones, and frustrating attorneys with hours of dead-end phone calls trying to locate their clients.  There are limits to the locator system.  One, for those searching by name, the spelling of the detainee’s name must exactly match ICE’s detention records.  ICE might not have entered the name correctly, especially in cases where a detainee has two last names that may or may not be hyphenated.  Hopefully, searchers will keep guessing alternative spellings if they don’t have a hit on the first try.  Secondly, ICE’s track record on the accuracy of detainee information has not instilled faith in the ability of the agency to keep track of all their detainees.  Third, the ODLS is inaccessible to anyone who lacks computer and internet access; there is no telephonic option.

Unfortunately, more people than ever before have a need to use the ODLS to locate a member of their family or community.  The Obama administration is detaining and deporting immigrants in greater numbers than ever before.  For the hundreds of thousands detained and deported in just the last two years, the ODLS comes too late to have helped their families find them in detention or try to find them a lawyer.  

A major problem with the detention system that has yet to be addressed is the incarceration of mentally disabled detainees.  Many of these individuals are held by ICE in unsafe conditions, while their cases are indefinitely continued because they are unprepared to represent themselves in immigration court.  As part of a large study on people with mental disabilities in the immigration system, Human Rights Watch (HRW) interviewed over 100 mentally impaired detainees, several of whom had been in detention for more than a year, although 2/3 of HRW’s interviewees did not even know when they had entered ICE detention.  Detainees with mental illness or cognitive disabilities, an estimated 15% of the entire detained population, often end up in segregation, the agency’s term for solitary confinement, as a result of their disability.

ICE recently directed its personnel against detaining individuals with medical or mental illness in some instances.   A June 30, 2010 ICE memo on civil immigration enforcement priorities stated that ICE field office directors should not “expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.”  It’s too soon to see what results this memo can bring.  We hope that de-prioritizing the confinement of nursing mothers and seriously ill immigrants will be an easily obtainable outcome.  It is long overdue.

Image by Flickr user 710928003.

Last week, a letter was released to Utah media, law enforcement, and legislators by “Concerned Citizens of the United States.”  Attached to the letter was a list of 1,300 names of individuals who the authors “believed” were “illegal immigrants.”  It was more than just names that were released.  Also included on the list were addresses, Social Security Numbers, birth dates, the names of children, and the due dates of women who were pregnant.

Someone took it upon themselves to release the private information of people they judged to be in the country illegally.  The people on the list—here legally or not, citizen or not—now have to worry that it is open season on them for identity thieves or worse.  Release of the list is a chilling development in an immigration debate increasingly marked by hysterical rhetoric and violent xenophobia. 

While Congress seems content to allow the problem to fester, the State of Utah acted swiftly.  On July 16, Utah’s Republican Attorney General, Mark Shurtleff, announced that there would be an “aggressive investigation” into the release of the list, and the persons responsible would face state charges and likely would face federal charges as well.  The Utah AG is working with the U.S. Attorney’s office.  On July 20, the Utah Governor’s office issued a release announcing that the investigation into the matter was complete.  Two employees of the Utah Department of Workforce Services have received “intent to terminate” notices from the state, and information from the investigation has been turned over to the Attorney General’s office.

In the press conference, Mr. Shurtleff sought to assure people that the state government was not going to use the list to round people up.

“People call it a black list. I see it more as a hit list, more reminiscent of what happened in Nazi Germany. … I understand the threat is real and I just hope people take comfort in knowing that that’s not how we do things and that the State of Utah itself is not going to be using this list in order to start knocking on doors and rounding up people.”

In his view, enforcement should focus on dangerous criminals.

“Enforcement-only… we think is counter-productive, harmful ultimately to public safety and to our efforts … and it’s very important to understand that the people whose names may be on this list in the immigrant community—legal and illegal or documented and undocumented—are important to us as confidential informants all working together because we are all being victimized by the bad guys, and that’s who we ought to be going after, and any effort to try and turn the people against and put the government against everybody who is in this country really harms that effort to try and root out those who are the danger….”

(You can listen to a recording of the press conference, which also featured John Wester, Bishop of the Catholic Diocese of Salt Lake City, Paul Mero, of the conservative Sutherland Institute, Luz Robles of the Utah State Senate, and Clarissa Martinez, of the National Council of La Raza, by going to this page of our Web site.)

The Utah response to this incident is in sharp contrast to Arizona, where SB 1070, if it is not blocked by the courts, goes into effect next week.  That law will have police “going against everybody.”  Instead of going after the bad guys, Arizona police will be overwhelmed by the law’s directive to arrest persons who they believe might be in the country illegally and the subsequent paperwork.

In terms of public safety, the effects of SB 1070 can be previewed in new research by America’s Voice.  In the state of Arizona, violent crime rates have been going down throughout the state—except in areas policed by the Maricopa County Sheriff’s Office.  Under the leadership of Joe Arpaio, that office has made it a priority to go after otherwise law-abiding undocumented immigrants. 

“From 2002 to 2009, while the violent crime rate across the state as a whole decreased by 12 percent, the area policed by the Maricopa County Sheriff’s Office suffered a 58 percent increase in violent crime. Compare that 58 percent crime increase to other law enforcement agencies in Maricopa County who engaged in community policing, not targeting immigrants. In that same time period, Phoenix enjoyed a 14 percent decrease; Tempe, a 26 percent decrease; and Mesa, a 31 percent decrease.”

Sheriff Arpaio has made the decision not to focus on “the bad guys,” and public safety in Maricopa County is suffering.

At the national level, we are unfortunately getting a little of the taste of Arpaio’s failures in Arizona.  On July 15, the Transactional Records Access Clearinghouse (TRAC) released one of their quarterly reports showing that criminal prosecutions of immigration violators have reached the peak levels of the Bush Administration.  In other reports, TRAC has noted that immigration prosecutions now make up more than 50% of all federal prosecutions, and the most common prosecution is for illegal entry.  Federal prosecution of other, more serious, crimes is declining.

The continued escalation in the prosecution of immigration violators by this Administration may soon be reflected in the crime statistics, as it has in Maricopa County, Arizona.  Communities along the border and elsewhere will see their violent crime rates go up, they will be less safe, and their jails will be filled with people who came here to find work.

Image by Flickr user Faithful Chant.

In the United States, due process is about having an adequate opportunity to present your story to an independent judge, to stand before a neutral decision maker and explain your situation to him or her.  Fundamental is the idea that the accused have the chance, in person or through their lawyer, to speak directly to a judge, respond to the evidence against them, and argue their case.

In immigration proceedings, where fundamental legal rights are determined and in some cases matters of life and death may be ruled upon, this basic principle of due process has been eroded beyond recognition.  Immigrants often testify not before a judge, but before a video camera, sign away their legal rights without translation or explanation, and are not allotted adequate time or attention for the judge to make a reasoned decision on their case.  Some of this has to do with changes made in the immigration laws in the past 15 years, as Congress has made it much more difficult for immigrants to have their day in court.  Some of the erosion of due process rights is the result of how the laws are implemented in the immigration courts.

Today, the immigration courts have notorious backlogs in their caseloads, and immigration judges hear far more cases per year than their counterpart administrative judges in other tribunals.  Another key problem is the lack of any legal representation for the majority of immigration respondents, particularly those who are detained.  (84% of immigrants who appear before the immigration courts while in Department of Homeland Security custody are not represented by a lawyer.)

In February, the ABA, in an exhaustive study of the entire immigration court system, found among other problems that resources for immigration courts are insufficient; that decisions among different immigration judges are highly inconsistent; that judges have inadequate time to sufficiently consider cases; and that DHS attorneys did not properly use discretion in weeding out less important issues or cases. 

Congress occasionally takes a look at the immigration court system.  On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR), the office within the Department of Justice under which the immigration courts are organized.  In her remarks, Chairwoman Zoe Lofgren noted that,

“At a time when resources dedicated to the apprehension of illegal immigrants have rapidly increased, there has not been a corresponding increase in resources necessary for the immigration courts…”

One way the courts have been dealing with lack of resources is to adopt the expediency of video teleconferencing.

Aaron Haas recently described a video conference in a Harvard University publication:

“It may surprise many people to witness an immigration hearing in present-day America….  They are likely to see a small room deep within a large federal building, with two tables perpendicular to one another, connected to form a right angle. At each table sits a lawyer, one representing the government and the other the alien. A row of chairs behind these tables and against the walls seat the family and friends of the subject of these proceedings. On the other side of the room, in view of the advocates and observers, is a television screen with a camera on top. This monitor shows, on one side of the screen, the judge, who may be located in another state, and on the other side, the immigrant, who is seated in a detention center in a third location.”

Lawrence Schneider, speaking recently on a panel at the Annual Immigration Law and Policy Conference organized by Georgetown University, the Migration Policy Institute, and the Catholic Legal Immigration Network, painted a picture of a video- conference hearing and raised questions about it,

“Videoconferencing presents fundamental conflicts to adequate representation, for the lucky immigrant detainees who do have counsel.  Picture this: the judge is in one location, speaking to a screen, and the immigration respondent is in a detention center hours away, looking back at a screen.  Where is their lawyer?  Does she go to the detention center to confer with her client, or go to the courtroom or office where the judge sits, to speak to them directly?”

Videoconference removal hearings, rather than physical appearances, were permitted by federal statute in 1996, and have increased in usage considerably in recent years.  The ABA, in its study mentioned above, found that videoconference hearings, which have become the only form of hearing for a great number of immigration detainees, can prevent the noncitizen from communicating effectively and confidentially with counsel, and impair the immigration judge’s ability to make accurate credibility determinations.  Close to 50% of the EOIR docket are detainee cases, and many immigration courts only allow detainees to appear for their hearings over videoconference.  This number will only rise as the courts search for efficiencies, and the detained docket grows as a proportion of the cases before the courts.

The ABA’s analysis of 500,000 cases found that videoconferencing doubled the likelihood that an asylum applicant is denied.  In addition, 45% of proceedings have technical problems, including lack of translation, interruption of the video feed, and lack of access to counsel. 

Videoconferencing is unquestionably cheaper than in-person hearings.  But at what cost to the integrity of our judicial system?  While modern technology has in many cases expedited and improved due process, it has also eroded that fundamental right to stand before a judge and present your case.  The ABA recommended that only procedural matters be decided by videoconference, while hearings on the merits should require in-person testimony.  It should be obvious that having one’s day in court assumes that one is actually in the courtroom.

The more the press examines the premise behind Arizona’s SB 1070 law, the more it looks to be one of those “emperor-has-no-clothes” stories.  On Sunday, Dana Milbank, of the Washington Post devoted his column to examining the claims being made by Arizona’s politicians about crime in Arizona and comparing them to a reality that can be verified. 

ImmPolitic first wrote about the verifiable reality in Arizona back on April 29th and May 5th.  Since then, the mainstream press has increasingly picked up on the fact that claims being made by supporters of SB 1070 contrast sharply with Arizona crime statistics and with the observations of border community law enforcement agencies.  In response, Arizona politicians have made more spectacular (but un-verifiable) claims.

Among others, Milbank singles out Senator John McCain, who might be excused for not bothering to check out a claim repeated in several news sources when he said that Phoenix is the “number two kidnapping capital of the world.”  As this exhaustive PolitiFact article notes, kidnapping statistics aren’t really kept in many other cities around the world, and kidnapping experts can only speculate where Phoenix might rank on a world list—somewhere far below number 2.

Governor Jan Brewer made the claim that “the majority” of people crossing the border illegally are “coming here and they’re bringing drugs and they’re terrorizing families.”  Milbank notes that, since October 1st of last year, 170,000 undocumented immigrants have been apprehended in the Border Patrol’s Tucson sector.  In the same period, there have been 1,100 drug prosecutions filed.  Even assuming all of those prosecutions are of undocumented immigrants, six-tenths of one percent does not make a majority in the real world.

With the press persistently calling into question these and other claims, Governor Brewer has reacted by becoming more shrill. She recently told a local television station that “law enforcement agencies” have been finding people who have been beheaded in the desert, presumably by people crossing into the country illegally. 

There has been no evidence to support this claim—certainly not from “law enforcement agencies.”

Milbank notes the importance of all these falsehoods:

[t]his matters, because it means the entire premise of the Arizona immigration law is a fallacy. Arizona officials say they’ve had to step in because federal officials aren’t doing enough to stem increasing border violence. The scary claims of violence, in turn, explain why the American public supports the Arizona crackdown.

In other words, the Arizona law, and public support for it, are predicated on the lies being told by Arizona’s politicians.

While the press has been more willing to challenge the assertions of our so-called leaders on this issue, there is a story in the July 12th New York Times reporting that some Democratic governors, gathered in Boston for a meeting of the National Governors Association, would rather run from the problem.  With governors all gathered in Boston, they have an opportunity to challenge their colleague Jan Brewer for shamelessly whipping up people’s fears on false pretenses.  Instead, they have expressed concern about the Obama Administration’s legal challenge to the Arizona law.

Some Democratic governors complained about the timing of the government’s lawsuit, coming as re-election campaigns are beginning to heat up.  Gov. Phil Bredesen of Tennessee said of the Justice Department’s lawsuit,

“Maybe you do that when you’re strong and not when there’s an election looming out there.”

Last I checked, the Constitution doesn’t get suspended in an election year.  The Administration is not deliberately timing the suit for election season; the timing was determined by the fact that the Arizona law goes into effect at the end of this month, and the Administration is claiming that the state law unconstitutionally challenges federal authority on immigration maters.

In any event, even if the Justice Department had not filed suit, Democrats would be faced with a debate on immigration during this campaign season.  Republicans have decided that they will (again) take a harsh stance on immigrants and immigration, and they will point to their hard line as a weapon against their opponents.  As Frank Sharry noted in the July 11th Washington Post,

Democrats should make the inevitable election-year fight over illegal immigration about comprehensive immigration reform—not just about the Arizona law or lawsuit. They should lean into the debate rather than run from it, calling out Republicans for blocking a solution that strengthens border security, turns off the jobs magnet and makes sure the immigrants here are legal taxpayers.

If Democrats want this issue to go away, they’d be better off doing everything they can to pass comprehensive immigration reform.  Until the immigration system is fixed and we deal realistically with immigrants who are living and working in this country illegally, immigration hardliners on the right will try to use the public’s frustration with lack of Congressional action to their political advantage.  Meanwhile, immigrants, their friends, families and supporters, their pastors and rabbis, their employers, and their shop stewards will continue to press for comprehensive reform in thousands of forums across the country.

Some Democrats may want to run from this problem, but there is no way they can hide from it.

Image by Flickr user John Gevers.