The number of immigrants in detention in the United States has more than doubled since 1999, according to a new report from a government data research organization released Wednesday. The report, based primarily on information obtained through the Freedom of Information Act from the Immigration and Customs Enforcement agency, also finds that ICE has increasingly transferred detainees more often and to facilities farther from where they were apprehended, disrupting contact with family members and attorneys attempting to represent them in their deportation cases.
[Immigration]ICE detains people suspected of violating civil immigration laws, not criminal laws. Still, in fiscal year 2009, ICE imprisoned 369,483 immigrant detainees — more than twice the number it held in FY 1999. In fact, according to an October report from ICE, the agency now operates the largest detention and supervised release program in the country. Although the average length of detention is 30 days, that includes those apprehended at the border and sent home within a day, which is about 25 percent of detainees. According to ICE, about 2100 immigrants are detained for a year or more.
The swelling of the immigrant detainee population is the result of changes in the law and increasingly aggressive enforcement measures. In 1996, Congress changed the immigration law to require the detention of certain categories of immigrants, such as those convicted of crimes, including misdemeanors, and all applicants for asylum. These immigrants are not entitled to a bond hearing, as criminal defendants are, to determine whether they’re actually a flight risk. According to a recent ICE review of the detention system, only eleven percent of immigrant detainees in custody had committed violent crimes. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the recent ICE report found.
More recently, ICE has also stepped up enforcement of the civil immigration laws, expanding two controversial programs in just the past year that has led to a growing number of immigration detentions. The 287(g) program, named for the section of the immigration law that authorizes it, allows local law enforcement to arrest and detain anyone suspected of violating federal immigration laws. ICE has also expanded a program called Secure Communities, started by the Bush administration, which requires local police to check the immigration status of everyone booked into a local jail. Before trial or conviction, all suspects are fingerprinted and their identifying information is sent to ICE to determine their immigration status. (ICE maintains fingerprint data on all individuals who have had contact with immigration authorities.) Undocumented immigrants can eventually be deported, regardless of whether they are convicted on criminal charges. Those convicted are deported after serving their sentences. DHS, which recently received $200 million to expand Secure Communities, has estimated that “tens of thousands” more immigrants will be deported under the Secure Communities program next year.
“As programs like that are implemented across the country the need for ICE to develop a risk assessment tool becomes increasingly important because the number of people who will be entering the enforcement system is going to grow exponentially,” said Jackie Esposito, policy director for the Detention Watch Network. “It’s a human rights issue and a due process issue, that people should not be detained without an individualized determination as to their custody status. But it’s also becoming a management necessity for ICE to really take a hard look at its detention population and start making decisions about who needs to be detained.”
ICE itself has acknowledged the problem, and in an October report from Dr. Dora Schriro, former Director of the Office of Detention Policy and Planning, she concludes that ICE needs to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.
Esposito acknowledges this, but says that “it’s unclear what the status of those efforts are and how widely implemented such a reform will be. At this point we have not seen any evidence that a risk assessment tool is going to replace the current practices in the field across the country.”
Judy Rabinovitz, Deputy Director of the American Civil Liberties Union’s Immigrants Rights Project, said that ICE’s focus so far has been on the conditions of detention. “That’s really important, but that’s not questioning the fundamental principle of, why are we locking so many people up?” In addition to the human cost, she noted, there’s a huge economic cost.
The other problem with the growing number of detainees is that there’s insufficient capacity at many detention centers to house them. As a result, ICE has increasingly transferred detainees multiple times to different facilities, often far from where they were apprehended. “Ten years ago only one out of twenty detainees experienced multiple transfers,” the TRAC report finds. “In FY 2008 one out of every four detainees (24%) was subject to multiple transfers.”
The consequences, notes Human Rights Watch, which released its own report today assessing the impact of transfers, can be devastating.
One detainee told Human Rights Watch that after living in upstate New York for 10 years with his wife and four children, ICE said he was deportable because of an old marijuana possession conviction, for which he had paid a fine and never served jail time. Detained in New York City, he was sent, just days later, to a detention center in New Mexico. “In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico,” he said from the Otero County Processing Center in Chaparral, New Mexico in February. “All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York … But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.”
Rebecca Schreve, an immigration lawyer in El Paso, Texas, told Human Rights Watch researchers that detainees “are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what state they are in….I have taken calls from seriously hysterical family members—incredibly traumatized people—sobbing on the phone, crying out, ‘I don’t know where my son or husband is!’ “
The recent ICE report acknowledges that attorneys representing detainees have complained that their clients are often transferred to detention centers far away and without notice, making legal representation extremely difficult. The report therefore only recommends that those who are represented by attorneys “should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.”
On Wednesday, ICE responded to the TRAC and Human Rights Watch reports. “ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency,” says the agency’s statement. “ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”
This story was updated to include a response from ICE.