As Gail Collins points out in a recent New York Times column, there is something to be said for the mere fact that the Senate actually managed to pass an immigration bill. As complicated, messy and ill-conceived as some of its provisions are, the bill does succeed in providing a pathway to citizenship for the 10-11 million immigrants currently forced to live on the margins of society. The recently approved Senate bill would, at long last, allow these immigrants to fully participate in all facets of American life, further enriching and strengthening us as a country.
However, CAIR Coalition, along with many other immigrant advocates, is concerned that this “pathway” has come at a very steep cost and that many of its intended beneficiaries will be left behind. For most undocumented immigrants, the road to citizenship will stretch for at least 13 years, with many possible pitfalls along the way that could foreclose the possibility of completing the process. Further, the bill does nothing to scale back the ever expanding definition of what constitutes a deportable criminal offense. Currently, even immigrants with minor criminal offenses who may have never spent a day in jail are faced with the possibility of deportation and permanent exile from their loved ones. For the most part, none of these individuals will have an opportunity to legalize their status and if they try to do so, will most likely be placed in deportation proceedings.
The bill also calls for a wildly expensive build-up of security along the border. As Collins points out, the price of bipartisan compromise was 20,000 new border agents (the bill approved by the Judiciary Committee had called for 3500 additional agents) and an expansion of the border fence to 700 miles. The total cost for the build-up: $30 billion at a time when discretionary spending on programs for the poor, the elderly and children is being slashed to the bone.
According to Chris Wilson, an analyst at the Woodrow Wilson International Center for Scholars, who is quoted in Collins’ article, this would represent the third doubling of border patrol agents in the last 20 years and is a “huge, huge build-up.” Wilson notes that in the El Paso area, apprehensions are down to about 3.5 immigrants a year per agent. According to a recent report by the Migration Policy Institute, a non-partisan think tank, the border is as secure as it has ever been. With overall border apprehensions down by more than two-thirds, it makes no sense to throw billions of additional dollars at a problem that has largely been solved.
The Senate bill does provide some important fixes that will help make the immigration system more just and humane, including eliminating the one year deadline for applying for asylum, providing counsel for children and immigrants with mental health issues, creating a presumption against detention for certain immigrants, providing immigration judges with more discretion in certain cases, promoting the expanded use of alternatives and requiring that all ICE detention facilities adhere to the most recent detention standards. However, the legislation also represents a missed opportunity to significantly reduce the overall number of individuals who are subject to immigration detention.
Regardless of whether an individual has access to legal counsel, simply being in detention makes it much more difficult to litigate an immigration case. In addition, detention of a parent can wreck financial and emotional havoc on the rest of the family. The purpose of immigration detention is to ensure that the immigrant shows up for his or her court proceedings and if ordered deported, leaves the country. Research has shown that in many cases, alternatives to detention, such as the use of an ankle bracelet or intensive monitoring, can be just as effective in achieving those goals at a much lower cost.
While the bill does provide for an expanded use of alternatives to detention, it leaves in place the congressional mandate that Immigration and Customs Enforcement (ICE) hold about 34,000 people a day in its detention centers. According to a recent Reuters article, the Department of Homeland Security (DHS) estimates it only needs about 31,800 detention beds on a given day, a number that could conceivably be reduced even further by the expanded use of alternatives to detention contemplated in the Senate legislation.
The bill also leaves in place the current definition of aggravated felony. Immigrants convicted of aggravated felonies are subject to mandatory detention. Aggravated felonies as defined by the Immigration and Nationality Act are not necessarily either “felonies” or “aggravated.” For example, a shoplifting offense with a one year suspended sentence is classified as an “aggravated felony.” Immigrants convicted of an aggravated felony are subject to mandatory detention and deportation no matter how strong their ties to the United States or how long ago the offense may have occurred or whether they are eligible for relief from deportation.
DHS should have the flexibility to detain only those immigrants who, based on an objective analysis of their cases, pose a threat to the community and/or are a flight risk. Only when Congress does away with the concept of mandatory detention and eliminates bed space quotas will there be any significant reduction in the over 400,000 immigrants who are currently being detained each year.
