U.S. Immigration System Is a Broken Behemoth
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One year after the administration of U.S. President Barack Obama announced that it intended to overhaul the country's heavily criticised immigration detention practices and create a "truly civil detention system", a new academic paper bolsters claims by human rights groups that real reform is still a long way off.
The paper, titled "Immigration Detention and the Law: U.S. Policy and Legal Framework" and published by the Global Detention Project (GDP) based at the Graduate Institute of International and Development Studies in Geneva, points to a number of recent legal developments that could have enduring implications for efforts to reform detention practices.
A key finding of the paper is that there has been an upsurge in efforts at the national, state, and local levels to criminalise violations of immigration law, which could result in burgeoning detainee populations.
"The United States has been steadily criminalizing immigration violations, while increasing the severity of penalties for non-citizens who violate immigration laws," according to the paper.
The paper points to studies, like one by Syracuse University's Transactional Records Access Clearinghouse, showing that since 2004, federal criminal prosecutions have jumped more than 40 percent, driven largely by increases in immigration prosecutions, which now make up nearly half of all federal criminal filings.
The GDP paper also highlights a string of recently passed laws at the state and local levels, including Arizona's "Support Our Law Enforcement and Safe Neighborhoods Act", which if implemented would require officials to significantly bolster detention capacities to handle the large numbers of people who would be detained.
While a federal judge recently blocked key parts of the Arizona law, the paper points to other recently passed laws - in Massachusetts and New York - that crack down on undocumented immigrants ability to work and find housing, making them increasingly vulnerable to immigration enforcement.
"The issue of immigration is yet another intractable problem the Obama administration inherited but which it must do something about," says Michael Flynn, lead researcher of the Global Detention Project.
"Because of the policies of his predecessors, the country's detention system has grown exorbitantly in recent years, and without the oversight needed to ensure people are treated humanely," according to Flynn.
Flynn says that while the administration has taken some important steps to reform detention practices, much remains to be done.
For instance, the paper points out that while the administration has followed through on its promise to restrict the detention of children by ending this practice at the controversial privately-run Hutto detention centre in Texas, children are still detained at the Berks detention facility in Leesport, Pennsylvania.
The GDP paper backs up complaints by human rights groups that although Obama has achieved some things, there is a long way to go.
"Despite steps in the right direction during the past year, we are disappointed that many detained asylum seekers and other immigrants in custody have seen little change," states a press release from Human Rights First marking the one-year anniversary of the administration's reform announcement. "Refugees seeking asylum in the United States should not be held in jails or jail-like facilities while their claims for protection the U.S. are adjudicated."
Similarly, the American Civil Liberties Union released a study last Friday which argues that while "Immigration and Customs Enforcement (ICE) has made some progress under the guidance of its newly-established Office for Detention Policy and Planning, major improvements in four vital detention areas - mental disability, health care, sexual abuse, and mandatory and prolonged detention - need to be undertaken."
The GDP's Flynn says that part of the problem is its size.
"There is this tremendously huge detention infrastructure in the United States, which surpasses the entire European Union in terms of the number of people detained and the number of facilities in use," he says.
By 2007 the U.S. detention infrastructure peaked at just over 950 sites, according to data attained by the GDP through a Freedom of Information request, including dedicated immigration detention centres, privately run prisons, local jails, juvenile detention facilities, and federal prisons.
During the period 2007-2009, the United States used more than 350 of these facilities, which confined up to nearly 400,000 detained immigrants and asylum seekers yearly.
Since Obama took office, authorities have worked to cut back on the use of prisons, and by the end of 2009 the number of facilities contracted by the government had decreased to less than 300, according to recent data the Department of Homeland Security (DHS) provided the GDP.
Fewer detention facilities, however, does not mean fewer detainees or improved detention conditions. In the mid- 1990s, the United States could hold some 6,000 noncitizens in detention on a given day; by 2008, the capacity had risen to some 33,000.
Immigration and Customs Enforcement (ICE), the branch of DHS that oversees the immigration detention system, continues to detain and deport immigrants at record levels.
During FY 2009, ICE's average daily detainee population was more than 32,000, higher than during the final years of the George W. Bush presidency. So far in FY 2010, the rate is at just over 30,000.
Rights groups point out that part of the problem is the strict enforcement of immigration provisions that were introduced in the 1990s, like increased used of mandatory detention for many irregular immigration and asylum seekers, which led to sharp increases in detainees, most of whom were placed in prisons.
"ICE relies primarily on correctional incarceration standards & [that] impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population," wrote Dora Schriro, now the commissioner of the New York City Department of Correction, in a widely noted 2009 report for ICE.
The problem is how to move away from this model in the face of increasing pressure from states and anti-immigrant groups and politicians to crack down on the country's undocumented population.
"President Obama has already spent a lot of political capital trying to salvage the economy, pass health care reform, and handle foreign wars started by his predecessor," says Flynn.
"Putting in place a 'truly civil' immigration detention system, a practice that by its very nature places people in an extraordinarily vulnerable situation, is difficult to imagine, though a fix is desperately needed," adds Flynn.