Currently, the facility with the largest number of immigrant detainees is ICA-Farmville, in Farmville, Virginia which as of the first week in June was holding over 500 immigrant men and women.  ICA-Farmville is a private, for profit detention center built specifically to hold ICE detainees. The other two facilities currently holding immigration detainees in Virginia are Hampton Roads Regional Jail in Portsmouth, Virginia and Rappahannock Regional Jail in Stafford, Virginia both of which are owned and operated by local governments and house both criminal detainees and immigration detainees.

Two ICE programs appear to be the driving force behind these skyrocketing numbers.   The first,  Secure Communities, has garnered a significant amount of publicity in recent months.  The second, Operation Cross Check, is less well known.

As of June 2010, the state of Virginia has required that all local jurisdictions participate in the Secure Communities program, even localities such as Arlington County, which would prefer to opt out of the program.  Under the Secure Communities program, any fingerprints that are taken by local law enforcement and sent to the FBI are automatically forwarded by the FBI to the Department of Homeland Security (DHS) to be run through their immigration database.  If there is a “hit” on the prints, i.e. the individual has a prior deportation order or some other contact with DHS that calls their immigration status into question, the person will be taken into immigration custody at the conclusion of the criminal proceedings.  Even if no criminal charges are filed or the charges are ultimately dropped, the person will still be turned over to ICE.

In theory, if there is no “hit” on the prints, i.e. no record of the individual in the DHS database, the individual should be let go.  However, in practice, Virginia’s participation in Secure Communities has opened the door for law enforcement officials to ask questions about an individual’s immigration status even if that individual has never had a previous encounter with immigration enforcement.  Thus, immigrants pulled over for a minor traffic stop in VA in which no arrest is made very often find themselves confronted by a police officer demanding information about their immigration status.

Operation Cross Check is a second ICE initiative that is leading to an increasing number of immigrants being detained in the state of Virginia.   Nationwide, 50 percent of immigrants in detention have no criminal record and of those that do many involve only low level, non-violent offenses.  In a growing number of cases, those offenses are years, and sometime decades old.  As part of Operation Cross Check, ICE appears to be devoting an increasing amount of resources, at least in Virginia, to combing through old criminal records to identify non-citizens who may be deportable regardless of whether these individuals pose any danger to the community.

CAIR Coalition recently spoke with an individual in detention who was picked up pursuant to a minor 1987 drug charge.  This individual, a legal permanent resident, had not been in trouble with the law since and was looking forward to applying for US citizenship.  In another recent case, CAIR Coalition spoke with a single mother of two children who had been picked up at her place of employment nearly three years after her attorney assured her that pleading guilty to a minor criminal offense would not endanger her status as a legal permanent residence.

Unfortunately, absent any movement on the federal level to provide a pathway to citizenship for the hard-working immigrants who are part of the fabric of our community, as well as to re-focus ICE’s enforcement efforts on those who truly are a danger to the community, CAIR Coalition anticipates that the number of detained immigrants in Virginia will only continue to grow, causing untold hardship for our immigrant neighbors and their children.

Over the years, immigrant advocates have repeatedly raised concerns that while the 287(g) program was being promoted as a public safety measure it was in fact indiscriminately targeting immigrants, not just dangerous criminals, leading to incident of racial profiling and undermining immigrants’ trust in the police. In March 2010, the Department of Homeland Security’s Office of the Inspector General published a report on the 287(g) program confirming these concerns.  Among the many problems noted in the report was the program’s failure to focus on noncitizens who pose a threat to public safety or are a danger to the community.

ICE responded to the report by saying that since the Office of Inspector General had conducted its field research in the months prior to the publication of the final report, ICE had fundamentally reformed the 287(g) program.  According to a fact sheet currently available on ICE’s website, the reforms were designed to improve the program by “strengthening public safety and ensuring consistency in immigration enforcement across the country by prioritizing the arrest and detention of criminal aliens.”

However, a recent report by the non-partisan Migration Policy Institute (MPI) undermines ICE’s claims that the program has been significantly reformed.  According to “Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement” issued in January 2011, half of the immigrants turned over to ICE through the 287(g) program in FY 2010 had committed only minor offenses or traffic violations.  In addition, while some jurisdictions had targeted programs that specifically focused on immigrants with felony convictions others were still following a “universal” model that placed an immigration “hold” (known as a detainer) on any immigrant encountered under the 287(g) program who had an immigration violation regardless of the severity of their criminal offense.

While the issue of whether local 287(g) programs lead to racial profiling was outside the scope of the MPI report, the authors did note that in 287(g) programs where the inquiry into immigration status takes place at the jail and not in the field, the arresting officers are generally working for agencies that are not under a 287(g) agreement and therefore are not under any federal oversight leaving open the possibility of pretexual arrests and racial profiling.

The report recommends that ICE take additional measures to assure that the 287(g) program follow a consistent model across jurisdictions that furthers ICE’s stated goal of promoting public safety by focusing on immigrants who have been convicted of serious crimes and who pose a threat to public safety.

Click here to read a copy of the report

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On October 6, 2009, John Morton, Assistant Secretary for Immigration and Customs Enforcement (ICE), announced that the Obama administration would be taking significant steps to reform the nation’s immigration detention system.  By the government’s own admission, the system used to detain and deport hundreds of thousands of immigrants in the last decade functioned with little oversight or accountability and was routinely failing to safeguard the health and safety of immigrant detainees.

Assistant Secretary Morton pledged that “with these reforms, ICE will move away from our present, decentralized, jail-oriented approach to a system wholly designed for and based on ICE’s civil detention authorities.”  According to Assistant Secretary Morton, the reform effort would lead to improved medical care, custodial conditions, fiscal prudence and ICE oversight.

Now, one year later, a coalition of immigrants’ rights groups have found that while ICE leadership remains committed to the reform effort, the pace of change has been slow on the ground, with many immigrant detainees still subject to harsh prison conditions.  According to “Year One Report Card: Human Rights & the Obama Administration’s Immigration Detention Reforms,” a joint report by the National Immigrant Justice Center, Detention Watch Network, and Midwest Coalition for Human Rights, progress toward achieving detention reforms have been hindered “by the need for ICE leadership to achieve a cultural shift among immigration agents in the field.”

Key findings of the report include:

• ICE leadership has demonstrated strong commitment to reforming the immigration detention system, engaging with NGOs and other relevant stakeholders to advance ICE’s reform agenda.

• ICE has taken steps in the design and development of a civil detention system including the launch of the on-line detainee locator system and the development of a risk assessment tool.

• Immigrant advocates nationwide continue to report widespread due process and human rights violations, including the overreliance on incarceration, mistreatment by guards, denial of access to legal service providers, inadequate medical care, misuse of solitary confinement, and discrimination against sexual minorities.

• Oversight, transparence and accountability are critical to achieving reform, and yet these are the weakest features of the reform process thus far.

• While the 2009 reform did not address ICE”s enforcement strategies, immigration detention and enforcement are intrinsically linked.  ICE cannot achieve a “truly civil” system so long as it continues to detain immigrants on a massive scale and does not increase referral of low-risk and vulnerable individuals into alternatives to detention programs.

According to the report, a key factor in ICE’s ability to significantly improve its decidedly mixed report card on detention reform efforts will be to reduce the number of immigrants who are being placed in detention facilities by expanding the use of alternatives to detention for those immigrants who do not pose a security threat.  The report advocates that ICE amend its current risk assessment tool to create a presumption for release for certain vulnerable immigrants including survivors of torture, victims of violence and those suffering from mental health issues.  The report also points out that alternatives to detention are a much more cost effective as well.

In addition to taking steps to accelerate the transition from a penal model of detention to a truly civil model, the report also states that ICE needs to address on-going deficiencies in the provision of medical, dental and mental health care to immigrant detainees, as well as promote a “culture of accountability” among front-line and supervisory staff within ICE in order to insure that problems are resolved in an effective and timely manner.

Click here for a full copy of the report.

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Texas Appleseed, a public-interest law firm dedicated to promoting greater justice for all Texans through research, advocacy and partnerships with volunteer attorneys and other professionals, has recently released a report chronicling the sub-standard care and lack of due process rights afforded to immigrants in the detention and removal process in Texas.  Although the report focuses on the treatment of immigrants in Immigration and Customs Enforcement (ICE) detention facilities in Texas and in the federal immigration courts in Texas, the problems the report uncovers are mirrored in ICE detention facilities and immigration courts around the country.

Texas Appleseed partnered with the law firm of Akin Gump Strauss Hauer & Feld to research and write “Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and Detention System.”   The 88-page report is based on interviews with more than 40 attorneys and mental health processionals who work with immigrants with mental disabilities.  (Mental disabilities include both mental illness as well as developmental disabilities.)  In addition, the team working on the report also interviewed immigration court judges and observed immigration hearings.  Attorneys from Texas Appleseed and Akin Gump also visited two detention centers in Texas and spoke with immigrant suffering from mental disabilities.

CAIR Coalition’s Legal Director, Liz McGrail, served on the national Advisory Committee that provided Appleseed that provided input and guidance at various stages during the research and writing of the report.

Despite recent reform efforts, the U.S. immigration system remains plagued with deficiencies that include the overuse of detention and a lack of basic medical care for immigrants suffering from mental and physical disabilities.  Nowhere are the deficiencies of the current system more evident than in the plight of immigrants who suffer from mental disabilities.

The Texas Appleseed report reveals numerous examples of poor or non-existent health care for immigrants with severe mental health problems held in ICE detention, arbitrary transfers of mentally-ill detainees far from family and mental health resources, and lack of due process of immigrants with mental disabilities in an immigration court system that affords them no right to counsel. The report also chronicles the lack of a functional record keeping system which often places critical health care information out of reach of both detained immigrants as well as their attorneys.  Finally, the report details how ICE’s lack of care and concern for immigrants with mental disabilities often extends to their release from detention or removal from the United States.  Many immigrants with mental disabilities are released from detention or deported without notification to family members, an adequate supply of medication or any provisions for their safe return home.

The report’s many case studies remind us that there are real human beings suffering on a daily basis as a result of ICE’s failure to provide even minimally adequate care to an extremely vulnerable group of people.  People like the physically disabled woman with mental illness who was left naked on the floor in solitary confinement for several days, bleeding from her menstrual period.  Or like the woman who was diagnosed with bi-polar disorder, post-traumatic stress disorder, and severe depression prior to her detention, who received no mental health care during her 18 month detention, and instead was ridiculed by guards who accused her of faking her illness.

Texas Appleseed makes clear that ICE and the immigration court system can, and must, do better.  To that end, the report includes six core recommendations in the report for improving the system.  They include:

1.         Recognizing immigrants as a vulnerable population deserving special protections.

2.         Placing immigrants with mental disabilities in the least restrictive setting.

3.         Providing appropriate diagnosis and care in detention.

4.         Establishing a competent medical records system.

5.         Improving the chances of a fair outcome in court.

6.         Ensuring the safe release or removal of immigrants with mental disabilities.

Click here for a full copy of the report.

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In response to the legal needs of unaccompanied immigrant children being detained in Virginia, CAIR Coalition has started the Detained Children’s Project in partnership with the Immigration Law Clinic at the University of Virginia School of Law.  The project will provide legal services to unaccompanied immigrant children being held at the Shenandoah Valley Juvenile Center in Staunton, Virginia, including “Know Your Rights” presentations, individual intakes, and pro bono placements.  CAIR Coalition will also accompany the children to their initial immigration court hearings.  CAIR Coalition staff will visit the facility twice a month and will be joined by trained law students from the University of Virginia who will assist with intake.

Each year, thousands of children enter the United States without a parent or adult guardian.   Some are coming to the United States to be reunited with family members, but many others are fleeing gang violence, domestic abuse and other dangerous situations at home.  Some are the victims of human trafficking.   In addition to the hardships they have suffered at home, many children making their way to the United States on their own become victimized a second time during the extremely dangerous journey to the United States.

Any child under the age of 18 detained by Immigration and Customs Enforcement is placed in the custody of the Office of Refugee Resettlement (part of the Department of Health and Human Services) which can house them in a variety of settings while their immigration court proceedings are pending, including secure juvenile facilities, group homes and foster care placements.   However, while the government will provide unaccompanied immigrant children with shelter, it will not provide them with attorneys.  As a result, almost half of all children who appear before an immigration judge do not have legal representation.  Although many of these children may be eligible for some type of relief that would permit them to remain in the United States, it is virtually impossible for an adult, much less a vulnerable child, to successfully navigate the immigration process without the assistance of an attorney.

Initial funding for the Detained Children’s Project is being provided by the Vera Institute of Justice, which supports a network of over a dozen non-profit organizations that provide legal assistance to detained immigrant children in Chicago, New York City, Washington, DC, Miami, Phoenix, Los Angeles, San Francisco, Virginia, Portland Oregon and four sites in Texas.

CAIR Coalition is excited about this new opportunity to insure that unaccompanied immigrant children being held at the Shenandoah Valley Juvenile Center have access to the legal assistance they need to protect their rights.

I.P. was initially detained by Immigration and Customs Enforcement (ICE) in July 2007 and held in a local Virginia jail.  Despite exhibiting signs of mental illness such as cutting himself and refusing to eat, I.P. was not given a formal mental health assessment.  Instead, was left to languish in solitary confinement for over a year while his mental health continued to worsen.

By the time ICE finally issued a Notice to Appear and placed him in immigration court proceedings, I.P.’s mental condition had deteriorated to the point of incompetency, vastly complicating efforts to ensure that his due process rights were protected during any court proceedings.

In November 2008, CAIR Coalition placed the case with Ms. Morgan and Mr. Saballos, students enrolled in the International Human Rights Law Clinic at American University’s Washington College of Law, working under the supervision of Practitioner in Residence, Meetali Jain.  Ms. Morgan and Mr. Saballos tried numerous strategies to try to help their client, starting with a request that he be transferred to a facility that could provide him with the mental health care that he needed.  They also petitioned the court for a competency hearing for their client and asked that a guardian ad litem be appointed. (In certain civil matters, a guardian ad litem may be appointed to assist counsel in determining the wishes of a mentally incompetent client.)

However, unlike judges presiding over criminal matters or other types of civil proceedings, immigration judges have no formal procedures for determining when an individual appearing before them is not competent, nor do they have any set procedures for safeguarding the due process rights of persons suffering from mental illness.  Each immigration court is different when it comes to dealing with individuals who are mentally ill, and this lack of uniform standards undermines the ability of counsel to competently represent their immigration clients.

Eventually, ICE agreed to transfer I.P to Columbia Care in South Carolina, a private mental health facility which contracts with ICE to provide mental health care to those detainees who are the most severely ill.  Once he started to receive appropriate treatment, I.P. improved significantly, and after a number of months he regained his competency.   In consultation with his attorneys and his family, I.P. decided that he wanted to return to Honduras where he had family members who were willing to help care for him.  In an unusual step, ICE not only agreed to voluntary departure (a better option for the client than a final order of deportation), they also paid for the cost of his transportation to Honduras.  In addition, the Department of Immigration Health Services communicated with officials in Honduras about I.P.’s need for medical care and provided him with a month’s supply of medication.  In September 2009, I.P. finally returned home to Honduras, ending a two year saga in immigration custody that had, for a time, cost him his sanity.

According to Ms. Morgan, “working on I.P.’s case opened my eyes to an entire immigrant population who become invisible in immigrant detention because of their mental illnesses. Because of the inaction of ICE and the jail, we had to work twice as hard to get I.P. the mental health treatment to which he was entitled. CAIR Coalition and our professor, Meetali Jain, were instrumental in our efforts. CAIR Coalition introduced us to other attorneys and advocates working on the issue of access to mental health treatment in immigration detention. I learned that being persistent with ICE and using other immigrant rights’ advocates as resources and allies are the most valuable things needed to be an immigration attorney. My experience representing I.P. and working with CAIR was invaluable. I believe that I am a better attorney because of it.”

Mr. Saballos was similarly impacted, both personally and professionally, by his work on I.P.’s case.  According to Mr. Saballos, “representing my client before the Immigration Court was, for me, the most rewarding experience I had in law school.  With the support of WCL’s International Human Rights Law Clinic and the CAIR Coalition, I was able to become intimately familiar with the challenges out-of-status immigrants face in the labyrinth that is our immigration system.  In addition to gaining first-hand knowledge in an area I hope one day to make my career, I also learned to practice the patience and empathy all client-service cases require.  As I.P. was mentally ill, severely so at the beginning of this matter, this case presented particular challenges that are unfortunately not uncommon.  Luckily, we were able to get him the treatment he so badly required.  I am grateful for this experience and I am confident that I am a more able and effective attorney because of my participation in this case.”

CAIR Coalition is very grateful to Ms. Morgan and Mr. Saballos for their willingness to take on such a challenging case and to American University and the International Human Rights Law Clinic for making this partnership possible.  Representing an immigrant detainee like I.P. who is suffering from severe mental illness requires an incredible amount of perseverance and creative lawyering on the part of counsel.  Ms. Morgan and Mr. Saballos did an outstanding job and the experience has helped both of them to become better lawyers.

As a first step towards implementing detention reforms, ICE is creating an Office of Detention Policy and Planning which will be tasked with undertaking a comprehensive review of the current detention system and moving it toward a series of benchmarks in seven areas, including ensuring the timely provision of medical, dental and mental heath assessments and services and developing a national strategy for the effective use of alternatives to detention.

Unfortunately, many of the proposed reforms are still a number of years off, although ICE will be taking some immediate steps to address concerns about detention conditions, including discontinuing the incarceration of immigrant families at the T. Don Hutto Family Residential Facility in Texas, which was the subject of a lawsuit by the American Civil Liberties Union for its inhumane treatment of children.  ICE will also appoint 23 detention managers to work at the 23 facilities nationwide that collectively hold 40 percent of the country’s detained immigrants.

While these efforts to improve conditions for detained immigrants are needed and welcome, the ultimate goal must be to reduce the number of immigrants who are being arrested in the first place.  In FY 2010, the U.S. government will spend over $1.7 billion to detain an estimated 33,400 people in over 300 facilities on any given day.  Surely, we have better uses for this money.  Instead of continuing to incarcerate hardworking, non-criminal immigrants and tearing apart families, we need to institute a comprehensive overhaul not only of our detention system, but of our immigration laws as well.  We need to provide a pathway to citizenship for the millions of immigrants who work hard to support their families and contribute to their communities, but who can never become fully contributing members of society without legal status.  Therefore, we hope that the administration’s support for detention reform will be matched by their support for comprehensive immigration reform come the fall.

The Independent Task Force on U.S. Immigration, which issued the 127 page report, was chaired by Jeb Bush and Thomas F. McLarty, III.  The 19 members of the task force  represented a broad cross-section of the community and included academics, business leaders, policy experts, civil and human rights advocates, members of the immigration bar, and individuals from the religious and labor sectors.  The report makes clear that reforming our dysfunctional immigration system is not going to be easy and that we may never get it exactly right, but that doing nothing is simply not a viable option.

The report begins with an analysis of the important role immigration has played in making the U.S. the world’s strongest and most dynamic economy.  It describes how a generous immigration policy that encourages foreign students and other visitors can ultimately make us more secure as a nation.  The report then provides discussion of how the current immigration system fails to serve our national interests by making legal immigration for business, education, family reunification and other purposes unnecessarily difficult and complex.  In addition to recommending policy changes that would encourage legal immigration, the report also deals with the challenge of what to do with the almost 12 million undocumented immigrants currently residing in the United States.  Finding the notion of breaking up families and deporting people who have been here for many years to be “morally unacceptable” the task force supports an earned legalization program that is accompanied by “more realistic immigration and temporary worker quotas and by stringent enforcement.”

While not every immigration advocate and supporter of comprehensive immigration reform will necessarily agree with all of the report’s conclusions and policy recommendations, this document is a must-read for anyone who wants to fully appreciate the complex issues that members of Congress will need to wrestle with in their efforts to craft legislation that will make the immigration system more responsive to the country’s needs, as well as create a pathway to citizenship for the millions of people now forced to live in the shadows.   Click here for a copy of the report.