Immigrant Detention System Broken

By William Fisher

"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.... 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 ... writing to ICE to get my records. But they won't give me my records; they haven't given me nothing. I'm just representing myself with no evidence to present." – (name withheld), writing from the Otero County Processing Center, Chaparral, New Mexico.

So reads testimony from one of the increasing number of immigrants transferred by the Department of Homeland Security (DHS) to detention centers far from where they were apprehended – making it virtually impossible for them to retain their records, communicate with family members, or hire lawyers to contest their deportation.

The number of individuals held in hundreds of different detention facilities by the DHS’s Immigration and Customs Enforcement (ICE) in fiscal year 2009 is estimated to have reached 369,483, more than double what it was a decade earlier. A new analysis of millions of government records shows that to handle this pronounced surge in detainees, ICE made 1.4 million detainee transfers in the decade from 1999 through 2008 -- 53 percent of them since 2006.

An increasing proportion of all detainees are being transferred. In FY 1999, one out of every five (19.6%) of the detainees was moved from one detention facility to another. During the first six months of FY 2008, the latest period for which complete data are available, the majority (52.4%) of detainees were transferred.

Almost as startling was the growth in the percentage of individuals who were subjected to multiple transfers — starting at one detention facility, being transferred to a second, and then again (and sometimes again and again) to other detention locations. Ten years ago only one out of twenty detainees experienced multiple transfers (5.6%). In FY 2008, one out of every four detainees (24%) was subject to multiple transfers.

This analysis is based upon previously unavailable data obtained by the Transactional Records Access Clearing House (TRAC) at Syracuse University and Human Rights Watch (HRW), which has published a new report, “Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States."

According to Alison Parker, HRW’s U.S. deputy director, “ICE is increasingly subjecting detainees to a chaotic game of musical chairs. And it’s a game with dire consequences since it may keep them from finding an attorney or presenting evidence in their defense.”

The human consequences of detainee 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. Initially 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,” a detainee said from the Otero County Processing Center in Chaparral, New Mexico. “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.”

ICE detains people suspected of violating civil immigration laws, not criminal laws. Many immigrants are first arrested and detained in major cities like Los Angeles or Philadelphia, places where immigrants have lived for decades and where their family members, employers, and attorneys also live. Days or months later, with no notice, many of these immigrants are loaded onto planes for transport to detention centers in remote corners of states such as Texas, California, and Louisiana (the three states most likely to receive transfers), the report found.

The average length of detention by ICE is 30 days, including the 25 per cent of detainees apprehended at the border and sent home within a day. But about 2,100 immigrants are detained for a year or more.

Says Rebecca Schreve, an immigration attorney in El Paso, Texas, "The transfers are devastating, absolutely devastating. [Detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in. I cannot overemphasize the psychological trauma to these people. What it does to their family members cannot be fully captured either. 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!'"

Detained immigrants have the right, under both US and international human rights law, to be represented in deportation hearings by an attorney of their choice and to present evidence in their defense.

But once they are transferred, immigrants are often so far away from their lawyers, evidence, and witnesses that their ability to defend themselves in deportation proceedings is severely curtailed, the report found.

"Immigrant detainees should not be treated like so many boxes of goods - shipped to the most convenient place for ICE to store them," HRW’s Parker said, adding, "We are especially concerned that the transferred detainees may find that their chances of successfully fighting deportation or gaining asylum from persecution have just evaporated."

The federal Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) has jurisdiction over the largest number of the transferred detainees. Those transfers are of particular concern, HRW said, because that court is widely known for decisions that are hostile to non-citizens and because the states within its jurisdiction collectively have the lowest ratio of immigration attorneys to immigration detainees in the country.

HRW acknowledges that some detainee transfers are inevitable, but says that ICE and Congress should use reasonable and rights-protective checks on detainee transfers as the best state criminal justice systems do. The report recommends concrete steps to help create such a system.

Although ICE has recently announced plans to revamp its detention system, which may provide an opening for reforms, the agency previously has rejected recommendations to place enforceable constraints on its transfer power.

A number of factors account for the dramatic increase in the numbers of detainees. In 1996, the immigration law was changed to require the detention of people convicted of crimes, including misdemeanors, and all asylum applicants. Unlike criminal defendants, these immigrants are not entitled to a bond hearing to determine if they are flight risks.

According to a recent ICE review of the detention system, about 11 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 ICE report concluded.

Intensified law enforcement has also played a role in increasing the number of detainees. For example, ICE has expanded its so-called 287(g) program, named for a section of the immigration law, which allows local law enforcement officers to arrest and detain anyone suspected of violating federal immigration laws.

ICE has also expanded the “Secure Communities” program, which requires local police to check the immigration status of everyone booked into a local jail. Those convicted are deported after serving their sentences.

DHS, which recently received $200 million to expand the “Secure Communities” program, estimates that “tens of thousands” more immigrants will be deported under the program in 2010.

ICE has 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.”

Earlier, ICE acknowledged that it had serious problems with the conditions under which detainees are held. A report from Dr. Dora Schriro, who was then Director of ICE’s Office of Detention Policy and Planning, concluded that ICE needed to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.

ICE detention centers – a collection of hundreds of Federally-owned facilities, county and city jails, and privately-run prisons – have been severely criticized for substandard physical and medical conditions. ICE has acknowledged these conditions.

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.”

The findings in the HRW report were confirmed by other sources. One is a bipartisan study group, the Constitution Project, whose members include Asa Hutchinson, a former DHS under secretary, and the DHS Inspector General.

The group called for sweeping changes in ICE policies and amendments to immigration law, including new access to government-appointed counsel for many of those facing deportation. It recommended shrinking the use of detention, in part by adding more constitutional safeguards required in the criminal justice system.

“None of the recommendations being made should in any way compromise national security,” Hutchinson said in an interview with the New York Times before he presented the report at the National Press Club in Washington. “It simply allows for a more humane and more efficient system,” he said.

A separate report by the DHS Inspector General found that ICE detainee transfers were so disorganized that some detainees arrived at a new detention center without having been served a notice of why they were being held, or despite a high probability of being granted bond, or with pending criminal prosecutions or arrest warrants in the previous jurisdiction.

The investigation found that the consequences included a loss of access to legal counsel and relevant evidence; additional time in detention; and “errors, delays and confusion for detainees, their families, legal representatives” and the immigration courts. Some detainees were transferred with files lacking a photo and a security classification, field inspectors found.

According to the inspector general, it is estimated that in the future ICE will detain more than 442,000 people a year — more than double the number in 2003, the year ICE began its operations. Prior to the formation of the Department of Homeland Security, ICE was known as the Immigration and Naturalization Service (INS).