While much of the media attention around the recently released Senate immigration bill has focused on the bill’s proposed “pathway to citizenship” and changes to current procedures governing the issuance of business and family-based visas, the legislation also contains a number of provisions that have the potential to significantly reduce the number of immigrants held in detention and to improve conditions for those who remain detained.
These include: 1) creating a presumption against detention and expanding the use of alternatives to detention; 2) appointing counsel for particularly vulnerable immigrants, including unaccompanied immigrant children and immigrants with mental disabilities; 3) expanding the Legal Orientation Program to cover all facilities where immigrants are detained and 4) requiring all detention facilities to follow the most recent detention standards and authorizing penalties for failure to comply.
In fiscal year 2012, Immigrations and Customs Enforcement (ICE) detained over 400,000 immigrants. Despite ICE’s many assurances that it was focusing its resources on dangerous criminal immigrants, many of those detained had no criminal convictions, or at most, had one conviction for a low-level, non-violent offense. While many of these individuals would have made excellent candidates for much less costly alternatives to detention, the system continues to demonstrate a bias toward detention.
However, as Cesar Cuauhtémoc Garcia Hernandez and Carlos Moctezuma Garcia point out in a recent posting on the blog “CrImmigration,” the Senate bill, “decreases one feature of immigration policing that’s been at the center of DHS’s [Department of Homeland Security] strategy during the Obama Administration and latter years of the Bush Administration: detention.” The bill shifts away from a bias toward detention by requiring that in situations that do not involve an immigrant subject to mandatory detention, an immigration judge can only detain an individual if the government demonstrates that there are no conditions, including the use of alternatives to detention, that can reasonably safeguard the community and insure that the immigrant appear for his or her court proceedings. The bill also authorizes the DHS to expand its alternatives to detention program which can include a variety of intensive monitoring strategies.
While the bill does not repeal mandatory detention it does provide that those subject to mandatory detention will now be potentially eligible for alternatives to detention. Currently, the DHS takes the position that alternatives to detention, such as an ankle bracelet, do not constitute a form of “custody” and therefore cannot be used on someone subject to mandatory detention.
The Senate bill overrides this interpretation of the Immigration and Nationality Act by specifically stating that enrollment in an alternatives to detention program would constitute “custody” for the purposes of satisfying the requirements for mandatory detention. While it appears that the bill would leave the ultimate custody determination of mandatory detainees in the hands of DHS it nonetheless places a higher burden on DHS to prove that continued detention is necessary to keep the community safe and insure the individual’s appearance in court.
In another important development, the Senate bill provides for appointment of counsel for unaccompanied immigrant children and immigrants with mental disabilities, as well as other immigrants who are deemed to be particularly vulnerable in relation to other individuals in the detention and removal system. Forcing children or those disabled by mental illness to face an immigration judge without benefit of counsel has long been a black mark against the detention and removal system. While there are other improvements that need to be made to the system to insure that the due process rights of particularly vulnerable immigrants are fully safeguarded, appointment of counsel is a significant step in the right direction.
While the bill falls short of requiring that the government provide counsel to all detained immigrants in removal proceedings, it would expand the current Legal Orientation Program (LOP) to all facilities holding ICE detainees. Currently, CAIR Coalition is one of 21 non-profit legal service providers offering LOP services at a total of 24 detention facilities across the country. These LOP services include group legal orientations, individuals consultations and access to pro bono counsel. The LOP program provides immigrant detainees with the information they need to make informed decisions about whether to continue fighting the government’s efforts to remove them or to accept an order of removal. However, the program operates in only a small fraction of the over 200 jails, prisons and detention centers currently house immigrant detainees. The expansion proposed under the Senate bill would provide all detained immigrants with critically needed legal assistance.
While access to legal assistance remains a hit or miss proposition depending on which detention facility an immigrants lands in, so too does access to the most updated version of the detention standards. There are currently three sets of detention standards governing ICE’s network of detention facilities. The oldest standards date back to 2000 and were subsequently revised in 2008 and again in 2011.
The 2011 Performance Based National Detention Standards were written with input from many non-governmental organizations, including CAIR Coalition and were designed to improve mental and medical health services, increase access to legal assistance and religious services, reinforce protections against sexual assault, create a more robust system for reporting and responding to complaints, and increase access to recreation and visitation. The Senate bill would require that all of ICE’s detention facilities be covered by the 2011 standards and would provide for penalties for facilities that were not in compliance.
While CAIR Coalition is encouraged to see the “Gang of 8” focusing on its attention on efforts to reign in the growth of the country’s burgeoning detention system, there are two areas where the bill could be significantly improved: 1) redefining the term “aggravated felony” to include only those offense that are serious felonies and redefining the terms “conviction” and “sentence” to more accurately reflect the seriousness of the crime; 2) eliminating mandatory detention and providing each detainee with an individualized assessment as to whether they are a flight risk and/or danger to the community.
Under the current immigration law, an “aggravated felony” as defined by the Immigration and Nationality Act (INA) does not have to be either a felony or a particularly serious offense. In addition, the definition of “conviction” under the INA includes those that are on direct appeal, as well as convictions that are later expunged. Further, in determining whether the sentence received for a particular crime brings it under the definition of “aggravated felony,” ICE counts the entire length of the sentence imposed, regardless of how much time was actually served. Thus there are many individuals in detention who never actually served a day in jail for the criminal offense that got them placed into removal proceedings and labeled an “aggravated felon.”
An immigrant who has been convicted of an “aggravated felony” under the current INA is subject to mandatory detention and is not eligible for most immigration benefits, including the new “pathway to citizenship” included in the Senate Bill. Changing the definition of aggravated felony to require a sentence of five years instead of one year and changing the definition of “sentence” to exclude any time suspended, would restore much needed proportion and balance to the treatment of criminal offenses in the immigration context, providing a second chance to those immigrants who deserve it while protecting the community from truly dangerous criminal immigrants.
One important driver of the unprecedented growth in the detention and removal system in the last decade has been the institution of mandatory detention for a broad category of immigrants. For example, individuals with decade old, relatively minor criminal convictions that are now classified as “aggravated felonies” find themselves subject to mandatory detention. There is no provision under current law for individuals subject to mandatory detention to have an individualized custody hearing. While the Senate bill, as noted above, appears to place a higher burden on DHS to establish that an immigrant who falls into the category of mandatory detainee, it appears ultimately to leave that decision in government hands, rather than in the hands of an immigration judge who can weigh the evidence and decide whether the individual needs to remain in detention.
Individualized pre-trial assessments of concerning whether an individual is a danger to the community and whether or not he or she will appear for their court hearing is a hallmark of the criminal justice system. There is even more reason for such an individualized assessment to be part of a civil detention and removal system where individuals are not being charged with a crime.
