The Immigrant Gold Rush

By Forrest Wilder, Texas Observer. Posted May 22, 2006.

For the savvy investor looking for a growth industry, South Texas offers a sure thing. The business calculus is simple: More immigrants than ever are being apprehended. That means the federal government needs more detention centers and more people to run them. No matter how the national debate on immigration plays out in Congress, the corporations that have moved into the business of building and operating detention centers are likely to see a steady stream of revenue for years to come.

The United States Marshals Service, for example, is now soliciting bids from private companies to build, own, and operate a 2,800-bed detention facility near Laredo. The "superjail," as it has come to be called, will serve the federal criminal court in downtown Laredo, which is loaded up with immigration-related cases in what the Marshals Service calls an "emergency [detention] situation." The $100-million superjail is expected to be one of the largest private detention centers in the nation, and will join a growing chain of county and local jails and private detention facilities all over Texas that coordinate with federal agencies to hold immigrants -- some destined for trials or hearings, others for deportation.

From downtown San Antonio to the banks of the Rio Grande in South Texas, for-profit companies run seven detention facilities for the Marshals Service and for Immigration and Customs Enforcement, a division of the Department of Homeland Security. ICE (formerly the Immigration and Naturalization Service) holds noncitizen detainees waiting for a hearing in the civil immigration courts, or facing immediate deportation. The Marshals Service is responsible for housing both citizens and noncitizens awaiting trial or sentencing in federal criminal court.

"It's the immigrant gold rush in South Texas," says Bob Libal, co-director of Grassroots Leadership, an Austin-based nonprofit that monitors the private prison industry. "In Texas, almost all of the current prison expansion is occurring to house immigrant detainees, and that's primarily located in South Texas along the border." There are at least 7,000 newly built or proposed ICE and Marshals Service beds in Texas for immigrant detainees, according to Corrections Professional, an industry journal. In the early 1980s, ICE (then INS) operated zero beds in Texas; the Marshals Service, no more than 3,000 in the entire country.

Nationwide, the number of ICE detainees went from 7,444 in 1994 to about 23,000 now; during the same period, the Marshals Service's population more than doubled to an estimated 63,000. Just in the last two years, Congress has authorized 40,000 new ICE beds over the next five years and given the Marshals Service funding for another 4,000 to 5,000. And the President's proposed 2007 budget calls for a $452 million increase in ICE funding, including money for another 6,700 beds. One of the companies to benefit from the government's building -- and privatizing -- binge is KBR, a Halliburton Co. subsidiary, which in January was awarded a contract worth up to $385 million to build temporary immigrant detention facilities for the Homeland Security Department in case of an "emergency influx of immigrants," according to a KBR press release. The top companies running South Texas detention centers are the Corrections Corp. of America (CCA), GEO Group Inc., and Emerald Correctional Management.

Libal says a "perfect storm" explains the growth in the detention industry. "First, you have this kind of anti-immigrant sentiment coming out of Washington at the federal level; second, you have increased zealotry from the U.S. Attorney's office to prosecute people criminally for extremely minor immigration crimes; and third, you have these private prison companies that are cashing in on the immigration incarceration boom."

The origins of the modern immigrant detention complex can be traced to the mid-1990s, when Silvestre Reyes, then-head of the El Paso Border Patrol Sector (now a Democratic congressman from El Paso), initiated "Operation Blockade" -- a strategy of concentrating enforcement agents to snag immigrants once they cross the border. This drove up the number of apprehensions and set in motion a militarization of the southwestern border. The budget for border enforcement went from $1.2 billion in 1995 to $4.7 billion in 2006, and the number of Border Patrol agents doubled. In addition, sweeping immigration reform laws passed in 1996 by Congress and signed by President Bill Clinton allowed the deportation of any noncitizen convicted of such crimes as drunk driving, hot-check writing, and shoplifting -- even if the crime occurred before the law went into effect. The 1996 legislation also required mandatory detention of any illegal immigrant deemed a "criminal alien," a noncitizen convicted or even suspected of illegal activity.

But in recent years, the Homeland Security Department has forged into new territory. With its Secure Border Initiative, the agency seeks to find and deport certain noncitizens, whether they are seized at the border or are living within the United States. One feature of the initiative is the elimination -- by this October -- of the so-called "catch-and-release" policy, in which undocumented immigrants are released on their own recognizance and given a notice to appear in immigration court at a later date. (About 40 percent failed to make an appearance in 2005, according to the Justice Department's Executive Office for Immigration Review.)

The Office of Detention and Removal, a sub-agency of ICE, calls its 10-year plan "Endgame," the goal of which is to "remove all removable aliens" by 2012, including the 590,000 people who have ignored deportation orders and the 630,000 "criminal aliens" serving sentences in jail or prison at any given time. The 6,700 new ICE detention beds requested in the 2007 budget represent a much greater number of potential deportees -- that's enough to allow an additional 134,000 people per year to be moved through the system. John Ferguson, CEO of Corrections Corp., spoke to analysts during a conference call on company earnings in February about the "significant opportunities" the Secure Border Initiative would bring: "ICE bed needs under the Secured Border Initiative [sic] potentially could be all private. ICE does not build their own facilities." Libal, the private prison critic, says companies like CCA "are right to be optimistic. They have the potential to get a whole slew of new contracts."

The Secure Border Initiative also puts into place another controversial enforcement strategy: "expedited removal," which requires mandatory detention and rapid deportation of certain undocumented border-crossers. Originally authorized under the 1996 law, expedited removal was set up in the McAllen and Laredo sectors as a pilot project called "Texas Hold 'Em" in August 2004. It has recently expanded to the full lengths of the Mexican and Canadian borders. The Homeland Security Department initially targeted Texas because the state receives the vast majority of non-Mexican immigrants. (Unlike Mexicans -- 92 percent of which are rapidly returned after apprehension -- "other than Mexicans" cannot be quickly sent home and are often released for lack of detention space.) Under expedited removal, undocumented non-Mexicans captured within 100 miles of the border who have been in the country for less than 14 days are held in detention facilities until they can be shipped back to their nation of birth, a process that can take a few days to a few months.

These detainees have no right to an attorney and are barred from returning to the United States for at least five years. Each person subject to expedited removal is supposed to be evaluated by an immigration-enforcement agent to ensure that they do not fall into a protected category, such as a bona fide asylum-seeker or a lawful permanent resident. Immigration advocates and attorneys worry that these agents lack the training or incentives to properly evaluate an immigrant's rights.

"It's a very summary procedure, lacking in the fundamental due process rights," says Meredith Linsky, director of South Texas Pro Bono Asylum Representation, a Harlingen-based organization. She argues that many individuals with a legal right to enter or remain in the United States are swept up by expedited removal and whisked out of the country. "Everything has changed" since she first arrived in Harlingen in 1989, Linsky says. "In 1989, everyone that was apprehended was given a bond, given the opportunity to go in front of an impartial judge. ...Today people are apprehended, and for the most part they are arrested, judged, tried, and removed in one fell swoop by the [Border Patrol] officer at the border with no legal representation."

Nina Pruneda, an ICE spokeswoman, hotly disputes Linsky's portrayal of the process. "First off, they're not low-level officers," she says. "Second of all, they are trained professionals in the expertise of customs and enforcement law; third, everyone is afforded the due process of law -- they can go up before an immigration judge; fourth, a lot of people do not necessarily interpret themselves as who they are." At present, Pruneda says, the San Antonio district, which covers 54 counties in Texas, is removing 500 to 600 people per week under the deportation program.

Pruneda argues that expedited removal, if run efficiently, cuts down on the time individuals spend in detention, freeing up detention space for illegal aliens who pose a threat to public safety. She says the average length a person on the expedited removal track spends in detention has been reduced from 90 days to 15 to 20 days. Still, the number of people subject to mandatory detention under the new rules is enormous. Immigration agents catch an estimated one million illegal entrants per year, with additional untold tens of thousands who slip through. Already, in an indication of what may happen in other border regions, South Texas detention centers are chock-a-block with non-Mexicans being processed for expedited removal.

Nearly 100 percent of the detainees in the CCA facility in Laredo and in a GEO Group center in Pearsall are being kept under expedited removal, says David Walding, interim director of the new Bernardo Kohler Center in Kyle, a nonprofit that provides assistance to detainees in South Texas detention facilities. But, he adds, echoing a nearly universal sentiment among advocates, "A lot of these people who get removed are just going to turn around and come right back."

If they do, their chances of being prosecuted on immigration-related criminal charges are greater than ever. Over the past five years, the federal courts' Southern District of Texas, which serves the region from Houston to Laredo, has exploded with noncitizens accused of federal immigration crimes. In 2005, the district tried 4,802 defendants accused of major immigration crimes, a 155 percent increase over 2001 levels, according to statistics compiled by the federal courts. The number of defendants charged with petty immigration offenses in southern Texas was up 260 percent between 2001 and 2004.

Together, the Southern District and the Western District of Texas, the other federal court district, had 80 percent of all minor immigration defendants in the nation, the majority of which were charged with illegal entry. According to Marjorie Meyers, the chief federal defender in the Southern District, more than 50 percent of the cases her public defenders handle each year in the border courts are "illegal entry" and "illegal re-entry," infractions that are committed hundreds of thousands of times each year at the border as people cross illegally back and forth.

Immigration attorneys and advocates have watched with a mixture of amazement and apprehension as the U.S. Attorney's office has increasingly focused on nailing border-crossers. "When I first started practicing immigration law many years ago, the only people that were prosecuted for illegal entry were people who had entered before or people who were doing something else wrong when they were entering," says Barbara Hines, director of the immigration law clinic at the University of Texas Law School. "I think that's really changed -- the people who are being prosecuted [now] are coming for the first time, who have no other criminal record, and they are being prosecuted and serving jail time." Sentences can range from probation to up to 20 years if the individual has an "aggravated felony" on record.

Nancy Herrera, executive assistant U.S. attorney for the Southern District, says that district attorneys in border districts decided in 2002 to take more cases to end the "revolving door" of repeat immigration offenders. "It's an effort to deter illegal entry to the United States while protecting the border," she says. But their defense counterparts have their own theories. "It is clear, and I have heard the U.S. Attorney's office say, that they choose to bring an illegal entry charge so they're on the books," says Myers. While an illegal entry charge usually carries no more than 30 days in jail, most noncitizens convicted of illegal re-entry receive between about four and eight years in jail if they have priors on their record, including immigration crimes, says Meyers. Lisa Brodyaga, an attorney in San Benito, elaborates: "A lot of the people they are prosecuting are garden-variety undocumented. The reason I think they are doing that is so if they catch them again, they can give them prison time." Illegal re-entry is a felony. As a result, she says, they are "pushing undocumented people deeper and deeper underground ... so they are more and more exploitable."

The stepped-up prosecution of immigration violations has obvious effects on the court system. An Observer analysis of data obtained through a Freedom of Information Act request shows that in 2004, the most recent year for which statistics are available, at least 71 percent of the 8,785 criminal charges at the federal courthouse in Laredo were immigration-related, the vast majority for illegal entry. In fact, nationwide, immigration has recently surpassed drugs as the #1 federally prosecuted crime. Good-bye War on Drugs, hello War on Immigration.

As the number of criminal prosecutions increases, the civil immigration courts then receive more noncitizens branded as "criminal aliens." "Most federal immigration enforcement crimes also have deportation grounds," explains Lee Teran, a law professor at St. Mary's University Law School in San Antonio, which makes it easier for the government attorney, a Homeland Security employee, to secure an order of removal in immigration court.

Take, for example, the case of Maria Cardenas, a 27-year-old resident of Laredo. She is a lawful permanent resident who has lived in Texas since she came from Mexico at 15 with her parents. Employed as a truck driver, she was getting ready to make a run from Laredo to San Antonio in her 18-wheeler last July. At a gas station, an undocumented man from Mexico asked her for a ride, telling her he had diabetes and needed to work for his family. Cardenas agreed, later saying she felt sorry for the man. Cardenas knew she was doing something illegal, but her compassion got in the way of sober thinking.

At a Border Patrol checkpoint on Interstate 35, agents discovered the man hidden in Cardenas' truck. She was arrested and taken in front of a magistrate judge in Laredo the next day. She received one year of unsupervised probation and thought the ordeal was over. But then Cardenas was taken into ICE custody and put in an immigrant detention facility run by the GEO Group in San Antonio. Now, she faces deportation to Mexico and a bar on returning for 10 years unless her lawyer can muster a legal defense allowing her to remain. If she were to return, she could face up to 20 years in prison. Winning Cardenas' case, her attorney says, will not be easy.

What will she do if she has to go back to Mexico? "I have a life here," she says in an interview, beginning to cry. "There's nothing in Mexico for me. I've always worked and paid my taxes. I've been a good resident." For each day of Cardenas' 10-day stay in detention, she likely fetched between $35 and $65 gross profit (the going rate in the region) for GEO Group.

As Texas moves deeper into the corporate-run detention center business, immigrant advocates worry about how much public scrutiny will be possible. "I think that immigrants are definitely more exploitable than even state or federal prisoners because they often have less access to resources and they are often deported after their detention," says Libal. "They tend to be a transient population; they tend to have language problems."

And once new detention centers are built, it is likely that the facilities will be open for business indefinitely, private prison opponents say. "They might pitch [new prisons] as a way to solve some temporary need," says Libal, "but once they build the prisons, they will always fill the beds, especially with private facilities." He points out that prison companies usually want to sign contracts with federal agencies that guarantee a minimum number of prisoners per month, legally binding the government to supply the bodies. In Laredo, the superjail has engendered the enthusiastic bidding of five corrections outfits, including CCA and the GEO Group, which are jostling to corner the emerging borderland markets. CCA has offered to pay the $100 million construction cost if it wins the contract, while GEO Group told Webb County that the company would give $1 million to the impoverished county for indigent care if it prevails.

So far, the rise in the immigrant detention business has received little attention as the national debate splits the business community and leaves Republican ideologues arguing with pragmatists. But the Office of Detention and Removal is hard at work on what it calls the "Endgame." For the corporations involved in immigrant detention, the endgame is the beginning of something big.

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