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Immigration and Criminal Justice: Facing the challenges of
Immigration Enforcement and Reform
Leigh-Ann Jara
Directed Independent Study
August 1, 2014
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Introduction
Since stricter immigration laws were passed in 1996, more and more immigrants
in the United States have been incarcerated (Kalhan, 2010). This could be if they
committed violent, property or public nuisance crimes, or because they breached
federal/state immigration laws; and even perhaps for both reasons (Jonas & Tactaquin,
2004). Unfortunately, the US Citizenship and Immigration - heretofore referred to as
previous name of the Immigration and Naturalization Service (INS) - made these
changes not based on research but due to a ‘moral panic’ to be tough on illegal
immigration and immigrant crime. This coincides with the similar Criminal Justice
paradigm of waging a war on crime (Lawston & Escobar, 2009/2010; Welch, 2002). The
1996 laws also came with the ability to be applied retroactively in order to incarcerate or
deport immigrants. This means that even if a person were living lawfully in the U.S. for
years and had committed a crime anytime in their past, they could now be deported,
that is even if they served their sentence. Additionally, the legislation meant that if the
immigrant’s offense was punishable by probation, they could still be deported (Welch,
2002).
It is this moral panic over immigration that has fomented and grown in intensity
with the terrorist attacks of 9/11; Welsh (2002, p.5) states that the laws were due to
“moral panic…through distorted lens of racial and ethnic stereotypes.” The immigration
laws are controversial to sparing viewpoints because the dilemma is not a clearcut
liberal vs. conservative, or democrat vs. republican issue. The problem and solutions
are multi-faceted and affect many aspects of American life. Immigration advocates feel
that law enforcement actions are racist, and that the laws unfairly target immigrants with
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minor infractions. Other feel that Americans lose their jobs to immigrants, the country
cannot support the influx of new arrivals who do not pay taxes. Conversely, more
people would mean prosperity and an economic boost due to their spending, as well as
provide for an additional revenue generated from employers who would pay a tax for
each immigrant they hire.(Welch, 2002).
As the number of prisons being built in the U.S. is rising, many institutions are
becoming specialized in the type of prisoners they incarcerate. According to Lawston
and Escobar (2009), incarceration, especially for those who have not committed a crime
(other than breaching Federal Immigration Laws), can have everlasting psychological
effects, separate families, and expose detainees to abuses and inadequate healthcare
(Díaz, 2011; Hussain, 2007).
Welch (2002, p.7) states that “prisoners [are] treated as raw materials that
produce economic gain for local and private jails.” The industry of private prisons is a
billion dollar industry and the number of detainees is steadily increasing. The largest
company (and the one to benefit most from detaining immigrants) is the Corrections
Corporation of America, or CCA. The CCA has detained almost 1 million people
awaiting deportation and spends millions each year in their lobbying efforts in congress
and with federal agencies (“The Business of Detention,” n.d.). The privatization of
prisons has been so successful, that the companies lobby for ‘anti-immigrant’ legislation
in hopes of housing more people and earning more money – without real regard for the
detainees or the welfare of the nation. Yet, further research is required to determine the
exact amount of influence the main companies have in congress and how that
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influences our nation’s laws regarding Homeland Security (“Detention Watch Network”
n.d.; “The Business of Detention,” n.d.; ).
This paper will analyze these issues and related ramifications to tax payers,
detainees and Homeland Security, as well as offer possible recommendations. Some of
the answers to be researched will include whether immigrants are detained for crimes
they committed or solely because they are undocumented; the length of detainment for
immigrants at different points in their judicial proceedings and the conditions under
which they are held. Lastly, recommendations to improve current policies regarding
incarcerating immigrants as a reaction, instead of addressing the root cause of the
incarceration en masse will be explored (Lloyd, Burridge & Michelson, 2009) .
Literature Review: The Contrasting Politics of Immigration
Enforcement
Opinions are diverse and include conflicting philosophies. Welch labels and
describes some of the ideologies as follows:
Nativists are against immigration and feel that the foreign elderly come to US to
siphon off the public welfare system and retire. Note, if immigrants enter the US or
adjustment to the status of refugee, than can qualify to receive Social Security Income
for up to seven years, at which time they must become a citizen to continue to receive
these benefits. The nativists are also described as racists who think a‘brownization’ of
the US is imminent as immigrants with darker complexions immigrate to US. Further,
these also promote population control and site environmentalism (conserving
resources) as reasoning to place immigration restrictions and limits. They spread
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negative connotations of immigrants, there is a perceived notion that immigrants are
inferior, criminal, and/or terrorists (Welch, 2001; Eriksson, 2010). Conversely, civil
rights groups claim many immigration policies discriminate against immigrants of color.
Job protectionists feel that immigrants take work from the unskilled American
labor force and caused minimum wage and pay scales for these jobs to remain very low
(as illegal immigrants are willing to work for lower wages). While Free Marketers are in
favor of immigrants and think free travel between countries is like a successful
import/export business and can mean financial prosperity for all. Those in favor of
immigrants claim new arrivals add around $80,000 in tax revenue throughout their life,
increase purchasing power, thereby creating new jobs and start businesses (Welch,
2002).
Some immigration activists’ view is that immigrants who entered the US illegally
or overstayed their visitor/business visas have not committed any crime, but are only
hard-working and genuine people who are looking for a better life for themselves and
their families. Welch (2002) supports this view and describes such people who are
residing illegally within the US and have committed a state/local crime as “people who
are just working and just happen to have a DUI” (p.78). However, these people have
violated federal law and thus, have committed a crime. In addition to the crime of
overstaying a visa or entering illegally, some have also added knowingly and willingly
providing false documentation to immigration officials. Ironically, even among
immigrants living in the US, the general sentiment is that illegal immigration should not
be tolerated.
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Lawston and Escobar (2009) state that laws, and those that draft and institute the
laws, which could label any immigrant as “criminal” are anti-immigrant. Crime is
conceptualized through provision of orderly labels and definitions of societal constructs
which shape legislation to perpetuate the desired conventionalities (Lawston &
Escobar, 2009). Additionally, citizens’ fear of crime seems to focus most with peoples
of color and low socio-economic communities (Lawston & Escobar, 2009; Simon, 2007).
Lawston and Escobar propose that the U.S. has singled out black women for
incarceration and scapegoating in the past but is moving to the criminalization of (illegal)
immigrants by espousing “a social structure that undervalues and increasingly punishes
[them]” (2009, p.3).1
Illegal immigrants are wrongly stereotyped and treated as criminals solely for
coming across the U.S. border and that they are labeled as criminals solely because
the federal legislation identifies their action as illegal. However, researchers attest that
the immigrants should not be considered criminal because they did not commit an index
crime (Díaz, 2011). Lawston and Escobar further illustrate this view by describing the
case of a particular immigrant from Mexico who was deported, and while she was
outside of the U.S., she played a part in organizing people who advocated for
immigrants’ rights. She then tried to reenter the U.S. unlawfully. Her actions led to a
27-month sentence in detainment. During her court proceedings, the charge of unlawful
reentry/”criminal alien” were dropped and she was instead charged with “conspiracy to
commit crimes against the United States by promoting undocumented migration” (p.5).
1
The most commonly detained immigrants are: Central American, Cuban, Haitian and Nigerian.
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Lawston and Escobar see this as a way to label immigrants as criminals so that they
can be detained, and be held for longer sentences, as in this case.
Díaz (2011) argues that immigrants are stereotyped as being criminal despite
them being less likely than U.S. citizens to commit a crime and that the longer
immigrants live in the U.S., the more likely they will be to commit crimes. His reasoning
is that the immigrants are being corrupted by Americans. He claims that racist policy
makers and an anti-immigrant American public have endorsed enforcement and/or
detainment policies only, rather than address the root cause of the problem and help
those residing in the US. Díaz further posits that white America sees the influx of
immigrants, especially people of color,as “threats to the degenerating white hegemonic
order” which causes panic as lawmakers fear the “browning of America” just as the war
on drugs sought to restrict the freedoms of blacks (2011, p.35). Díaz and Welch
provide another example racism in policits through passage of such laws as the
Personal Responsibility and Work Opportunity Reconciliation Act which tightened up
restrictions for those who can receive welfare (It is limited to refugees for certain periods
of time.) (Welch, 2002; Díaz, 2011).
Legislation such as the 1986 Immigration Reform and Control Act (IRCA) also
contributed to the public’s view of many immigrants as dangerous criminals becauseit
bolstered border and national security by increasing security and deportations.
Ironically, the IRCA also provided amnesty to over two million people. (Lawston &
Escobar, 2009).
The government reassures the American public by touting that tougher
immigrations legislation and enforcement is for the security of citizens, but in reality is to
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demonize and deport immigrants so as to maintain a Caucasian majority (Díaz, 2011).
Attempting to debunk the Broken Windows theory, he states that as immigrants moved
away from disorganized neighborhoods, they committed less crime. However, the basis
of this theory was that more crime is committed in disorderly neighborhoods (unkempt
areas, loiters, drug users and prostitutes visible), not that immigrants were the source of
the crime in such areas (Martinez & Valenzuela, 2006).
The idea of moral panic is described by Welch as an “exaggerated response to a
[perceived] social problem” (2002, p. 8). The response need not be resulting from an
actual threat to people, however, it is their interpretation of a situation that causes them
to act quickly and perhaps irrational. Moral panic demands stricter immigration
legislation as fear of terror attacks and negative stereotypes frighten the public who
influence the politicians. Politicians running for office can use the public’s moral panic
as campaign platforms. They aspire to win elections by fomenting their constituents’
fear and subsequently supporting legislation which seeks to combat the roots of said
panic. In this case, it is the fear of illegal immigrants that drives immigration policies.
In general, the sway of moral panic surrounding immigration appears to correlate
with the economic conditions within the US – when the economy is good, immigration is
not a concern, however when the economy is down, immigrants, especially illegal ones,
are seen as scapegoats or taking the much needed jobs from unemployed Americans
(Welch, 2001; Jonas, S. & Tactaquin, C. (2004).
Similar to the war on drugs, measures for addressing illegal immigrants appear to
focus on the consequences (mass illegal immigration or drug addicted people) instead
of focusing on solutions. Alternatives to incarceration can include: providing care to
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educate users about effects of drugs and/or medical treatments, or providing illegal
immigrants with the means to be productive (and legal) residents (Simon, 2007; Díaz,
2011; Welch, 2002).
Legal Issues
Constitutional Rights of All US Residents, Legal or Not
In Carlson v. Landon (1952), it established that non-US citizens were also
protected under the constitution and, therefore, entitled to due process and a hearing
before they can be deported (“Justia US Supreme Court”). Hussain explains that “Because
the Equal Protection Clause of the Constitution [14th
Amendment] applies to all persons,
not just citizens, federal courts have been forced to balance plenary power with the
constitutional rights of non-citizens” (2007, p.140). Additionally, Hussain asserts that
the federal criminal justice system is more apt to allow for the Equal Protection
Amendment to be applied to cases when the accused immigrants has committed
crimes not related to immigration (Hussain, 2007).
However, there is still debate as to what extent this amendment protects immigrants.
According to Welch (2002) and the US Supreme court2
, despite foreign nationals
not having the right to enter or stay within the US without permission, “once here, the
Constitution protects them from discrimination based on race and national origin and
from arbitrary treatment by the government” (p.66). Even those awaiting a deportation
hearing are entitled to advanced notice of the hearing, legal representation, information
of the charges against them and an interpreter.
2
Yick Wo v. Hopkins (1886) held that all people within the US were entitled to 14
th
amendment rights.
Bridges v. Wison (1945), ruled that due process also protects immigrants.
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In 2000 and early 2001, congress and the American people were changing their
views on stiff immigration laws. In 2001, President Bush considered implementing a
Guest Worker Program for workers coming in from Mexico and the U.S. Supreme Court
“declared the retroactivity and automatic deportation provisions to be unconstitutional”
(Jonas & Tactaquin, 2004, p.72). However, the terrorist attack on 9/11 caused
legislation of a punitive nature to be introduced, i.e. the USA Patriot Act of 2001. This
Patriot Act allowed immigrants suspected of terrorism or terrorist associations, to be
detained for a week without knowing why, preventatively detained them and again
brought ‘secret hearings’ into the process. In 2003, the Supreme Court ruled that even
legal permanent residents could be held indefinitely while awaiting their deportation
hearing if they had been convicted of a crime. Also that year, legislation was passed
that allowed the FBI access to citizens’ banking information without the person’s
knowledge (Jonas & Tactaquin, 2004)
The Legislation of 1996 and Beyond
The tougher immigration legislation of 1996, the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) was a solution enacted party due to the legislative
response to immigration in 1986 with the Immigration Reform and Control Act. This
1986 legislation granted amnesty to 2 million civilians who had been present in the US
for at least four years by allowing them to become lawful permanent residents. To this
day, applications for residency under this program still trickle in to the INS. This law
also funneled more money into enforcement, border patrol and the deporting of ‘criminal
aliens.’ (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011, Lloyd, et al., 2009).
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The IIRIRA relies more on detainment rather than on alternative methods for
housing or keeping track of immigrants awaiting hearings or adjudication of their
application(s). These laws follow the general approach prevalent in the Criminal Justice
paradigm in the US, which is one of “penalties, police and prisons” (Welch, 2002, p.7).
The incarceration approach relies on physical restraint and confinement rather than the
social control prism which addresses “adverse societal conditions, including poverty and
inequality” (Welch, 2002, p.7).
The INS did not anticipate the negative consequences of the IIRIRA. Some of
the negative consequences of these laws include a dramatic increase in the number of
those detained, violations of civil and human rights and denial of due process.
Furthermore, laws such as this one allow for: secret evidence (Welch, 2002; Hussain,
2007), mass detention and racial profiling. Hussain states that new programs instituted
under the USA Patriot Act of 2001, such as National Security Exit-Entry Registration
System target Arabic men. In 2003, the Department of Homeland Security announced
they would automatically detain asylum seekers if they were from a list of countries
suspected of terrorism. He claims that racial profiling is not effective, as terrorists will
then recruit those outside of the stereotype. He also asserts that Muslim and middle-
eastern peoples are unfairly targeted because a disproportionate amount of them are
deported and/or detained, as compared to illegal immigrants from Latin America
(Hussain, 2007).
The IIRIRA takes a multifaceted and overarching approach to instituting
restrictions on immigration. For instance, new requirements were placed on financial
sponsors of those seeking to immigrate into the US. Immigrants can now be
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immediately deported (or at least fined and/or imprisoned) for not carrying their
immigration documents at all times. Once deported, they would not be admissible into
the US for up to 10 years. (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011; Jonas,
S. & Tactaquin, C. (2004)
The law does not differentiate between asylum seekers and those who have
committed deportable crimes. Asylees are people who apply US residency once they
are in the US. Ayslum is granted for those who face persecution in their home country
(e.g. whether it based on “race, religion, national origin, social group, politics …
domestic violence and attacks on gays”. (Welch 2002, p.92).3
Asylum seekers will often
enter the US illegally, and file for immigration benefits once they are residing in the US.
Despite them fleeing their homeland due to persecution, they are categorized simply as
illegal immigrants, and many times literally and figuratively categorized as criminals who
are then seen as a threat because they are incarcerated – whether in a federal
detention center or local or state jail.
Additionally, the IIRIRA practically eliminated the right to due process by not
requiring judicial review of deportation decisions. This “disrupts the separation of power
between the courts and the executive branch of government” (Welch, 2002, p.67).
Another controversial aspect of the law is that it allowed for secret evidence to be used
against suspected terrorist detainees as grounds for deportation during their hearing.
Neither those detained nor their attorney, can know what information is being used
against them, in the name of national security (Welch 2002; Hussain, 2007).
The IIRIRA places emphasis on confining violators in federal, state and county
facilities which can be akin to, or actual, prisons with harsh living conditions. Perphas,
3
Refugees are those who apply for admission into the US from outside the country.
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the most disconcerting piece of the law is that it reclassified crimes as aggravated
felonies, which if an immigrant is convicted of or admits to, they can be detained and/or
deported. Some of the now deportable offenses which were previously classified as
misdemeanors include:
• Driving under the influence, DUI
• Simple Assault
• Shoplifting, petty theft (if the person was sentenced to one year imprisonment)
• Drug offenses (The problem is that the law does not differentiate between illegal
drugs (cocaine, marijuana (in most states) and drugs which may be legal in other
countries (steroids)) (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011; Jonas,
S. & Tactaquin, C. (2004).
Although, the intent of the IIRIA was that it would apply mostly to illegal immigrants,
it has mainly affected lawful permanent residents. Within a year of the law passing,
“more than 200 legal permanent residents who had minor brushes with the law were
apprehended and detained by the INS.” (Welch, p.59, 2002). Specific to asylees, the
new policy also allows for indefinite detainment – especially in cases in which the US
does not have a reciprocity agreement with the immigrants’s home country and/or no
other country will take them (some countries include: “Cuba, Iran, Iraq, Laos, Vietnam,
part of the former USSR, the Gaza Strip (Palastine Homeland)” (Welch, 2002, p.66).
What especially makes the law a conundrum is the retroactive application of the law
to prior offenses – regardless if the offender served their sentence, or fulfilled the terms
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of their probation, they can still be found inadmissible or deportable. Another major
concern for immigrants is the undaunting realization that this law also make it possible
for the citizenship of naturalized citizens to be revoked if they admitted to, or were
convicted of these offenses (Welch 2002; Díaz, 2011; Hussain, 2007). This overarching
policy has boosted the number of immigrants incarcerated, while diminishing the
immigrants’ morale yet profiting the Prison Industrial Complexes and policymakers.
Economic Issues
Incarceration as a Business
One reaction to the perceived increase in lawlessness was in the growth of
prisons and the criminalization of immigrants through legislation and the catch-22 of
publicity fomenting the general populations’ fear. The criminalization of immigrants was
not an issue that serendipitously appeared and shaped legislation, but has been a
constant in the war on crime and a mission of the U.S. mass-incarceration paradigm
(Lawston & Escobar, 2009; Simon, 2007). Around 1991, the INS entered the business
of prisons and business appears to be booming and locations increase, including over
900 facilities contracted to house immigrants. Many local and private jails depend on
funds received from the CIS for housing immigrant detainees; in the Wicomico facility in
Maryland, they earn $50 each day for a bed space for which the county pays only
$17.89; in one year, the jail earned $2.7 million just from funds from the UNS. Due to
extreme penny pinching, however, the facility, and others like it, choose to skimp on
care provided to inhabitants. Subsequently, they are then investigated by the federal
agencies for holding immigrants in in humane conditions. Prisons and jails, agree to
house immigrants because quite often the per capita income can be twice that of citizen
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offenders. (Welch, 2002). The government continues to build and contract with more
and more prisons in an effort to make a financial profit while sacrificing the loss of
freedom and judicious treatment for those with little hope of making their predicament
known (Lawston & Escobar, 2009). The swelling corrections/prison industrial complex
continues to grow as profit and political careers can be made from the proceeds (Díaz,
2011; Welch, 2002; Lloyd, et al., 2009). In this business model, the ‘raw materials’ are
the people held in the prisons. They are counted as ‘beds’ and not seen as individuals
with rights or needs. Tens of millions of net profit are made by corporations with a part
in the Prison Industrial Complex. The illustrious line of business is led by three main
corporations, The GEO Group, Corrections Corporation of America, and Management and
Training Corp. These corporations house immigrants, and also generate income by
providing transportation and medical care for them. They have also “spent at least $45
million combined on campaign donations and lobbyists at the state and federal level in
the last decade” and earn tens of millions in net profit (The Associated Press, 2012).
The perpetual detainment cycle appears to being with the public’s fear of illegal
and/or legal immigrants, which gives way to moral panic then capitalized on by
politicians passing legislations which incarcerated immigrants. The result is social
control of populations by removing them from main-stream society and labeling them as
deterrent or even dangerous. Thereby enabling the cycle of exaggerated fears
marginalizing groups of people who are then removed, when is indicative of racism in
policy making and implementation. Such legal maneuvering is further indicative of a
relationship between the Prison Industrial Complex and the government, as stricter
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immigration policies feed violators into local, state and federal detention facilities (Díaz,
2011; Hussain, 2007; Welch, 2002, The Associated Press, 2012).
Companies traditionally thought to be out of the scope of immigration
enforcement have also become involved. Several airlines, such as Delta and Northwest
have paid for motels, emergency medical care, food and private security until other
arrangements can be made for the custody of immigrants who either were denied entry
into the US and/or awaiting adjudication of their asylum applications.
Justice System Issues
Detainment
Detainees are often sent to county and state prisons and jails, are not differentiated
between the resident criminals and can be housed with violent offenders. This prisons
and jails are even less capable of meeting the needs of the immigrant ‘inmates’ than are
federal facilities. While detained, the immigrants may face:
• Cultural and language barriers,
• Digestion issues (not accustomed to American food)
• Little or no access to legal representation
• Physical, emotional, sexual abuse
The Corrections Corporation of America (CCA) has a 3,000 bed detention center
in San Diego. Since 2001, the number of immigrant detainees in the U.S. has more
than tripled so that there are about 400,000 detainees each year and on average, over
30,000 immigrants are in custody each day (Jonas & Tactaquin, 2004;Lawston &
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Escobar, 2009; The Associated Press). As funds within DHS have been funneled more
to the enforcement side rather than the service side, adjudication of applications for
citizenship and residency slowed down and the amount of applications increased. This
then exacerbates problems for many seeking residency as their status may expire while
awaiting adjudications
The practice of indefinite detainment, however, was addressed in Zadvydas v.
Davis (2001) which held that the government cannot indefinitely hold deportees once
they have been adjudicated as ‘deportable’. The decision also held that they
government cannot preemptively hold suspected terrorists or others in an effort to
prevent them from committing a future crime/attack (Hussain, 2007). However,
indefinite detainment is still a possibility while people are being held awaiting
adjudication of their asylum application, deportation or while the CIS locates a country
that agrees to accept them (Welch, 2002; Díaz, 2011). (At times, deportable immigrants
have remained in custody because their country of origin does not participate in a
reciprocity agreement and/or alternatives countries (chosen by the deportee) refuse to
admit them.)
A concern regarding detainment is not to repeat the mistakes of the past. Some
fear and do not want to repeat the internment camps instituted during WWII in which
Japanese and Japanese-American civilians were held, at first under the auspices of
protecting them. Some were detained for three years, and in that time they lost their
homes, business and family ties. Another example from history is in the 1980s, the
federal government oversaw an internment camp in Arizona for Central American
citizens who sought refuge in the US.
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Since authorities do not regularly inspect immigrant detainment facilities,
especially those privately owned, much abuse can occur before it is discovered, if it is at
all. Because of media outlets and anti-immigrant groups touting the criminality of illegal
immigrants, not much is done to alleviate their conditions as the public then views these
people as deserving of the maltreatment they deserve because they breached federal
law (Lawston & Escobar, 2009). Perhaps the plight of the detainees would be
ameliorated if the general public were aware of the magnitude of the problem of so
many being detained.
An example of a poorly run corrections corporation is the case of ESMOR facility
in New Jersey, in which the detainees rioted against harsh conditions and abuse from
the guards. An investigation found that some guards had physically abused the
inhabitants, stolen their personal property, and caused them stress and anxiety through
humiliation and startling them awake during the night. Some reasons cited for the poor
management were that ESMOR did not provide enough personnel and attrition rates
were high due to the low pay; and with the constant turnover, the guards were
undertrained. The detainees rioted because they were being held an average of up to
115 days, denied natural light, privacy in the bathroom, access to their legal counsel
and they were shackled. As a result, the detainees were later transferred to a county
jail, where they also alleged abuse by the guards.
Conditions of Confinement for Detained Immigrants
Incarcerated immigrants have a limited voice with limited access to legal counsel
and advocacy groups, therefore, they have little opportunity to promote their side of the
story or build up a defense. On the flip side, the INS is not only a fee-based agency --
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receiving funds from the 1,000s of applications and waivers filed -- but they are also
allotted monies from congress. The agency is dichotomous in that it enforces the
immigration laws while also providing service to those seeking visa, residency, work
permits, citizenship, etc. Welch (2002) claims that the INS is more interested in their
enforcement side as they increase jail space by building more ‘processing centers’ and
procuring contracts with county and state jails and prisons, rather than determining the
best way to resolve the problem of illegal immigration (Kalhan, 2010). Following are
many aspects of the prison industrial complex paradigms which proliferate diliemas for
those in custody.
Restrictions
Detainees are held with more restrictions such as preventing them from
communicating with their support system of family, friends, community and/or attorney.
This extends their physical and emotional isolation compounded by language and
cultural barriers. Communication is paramount for a detainee as they are unable to
make international calls to request required paperwork or make other arrangements to
support or understand their asylum case (Welch, 2002). A myriad of obstacles and
challenges for detainees are discussed below.
Always Moving
Detainees are frequently transferred from one facility to another and from state to
state, many times without notification to their family or attorney. This causes isolation
from familiar connections and is expensive for family to travel, whether nationally or
internationally. People in their support systems may not know where to go to find their
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loved one or client. Additionally, the incarcerated person can easily lose their personal
belongings, including critical paperwork for their case. Critics say the INS does this in
order to punish inmates, while the INS claims the moves are to move detainees closer
to their support system (Welch, 2002).
Recordkeeping
Ironically, there have been reports that some immigrants who were scheduled for
deportation hearings, were ordered to be deported because they failed to appear for
their hearings. However, these immigrants were not able to appear because they were
in INS custody at the time, and the agency did not realize that they held the immigrants.
Thus their attendance at the hearing had not been arranged, and they were ordered
deported.
Limited access to attorneys
One-third of those seeking asylum in the U.S. do not have a lawyer, yet with legal
representation, an applicant is six times more likely to received asylee status.
Additionally, immigrants may not be able to afford an attorney who specializes in
immigration law and without that experience, a complicated case (or even a simple one)
can easily be lost. Immigrants are vulnerable and more likely to be cheated by
unscrupulous lawyers who have no expertise with immigration law. These problems are
exacerbated by the possible multiple transfers, restrictive visitation and telephone
policies (Welch, 2002). Furthermore, many immigrants have pled ‘nolo contendere’ to
charges, not realizing or knowing that they would then be deemed deportable, despite
not being convicted. This is because, as stated earlier, that if one is convicted or admits
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to a deportable offense, they can be deported. Whether it be because they did not
understand this and thus pled ‘nolo contendere/no contest’ or because they were ill-
advised to do so by an attorney who did not understand the full ramifications of the law
(Christian, 2010).
Maltreatment while e confined
Confinement conditions can affect detainees physically, psychologically and
emotionally. Medical and mental health care can be lacking and/or substandard.
Detainees have suffered abuse at the hands of those charged with looking after them.
They have been handcuffed and strip searched which is the same treatment received
by the criminal inmates. Reportedly some have even been shackled with weights while
being interviewed by INS officials. Their treatment is worse in county jails as they are
dressed in prisoner uniforms and the same rules apply to them as to the inmates
regarding food, hygiene, contraband items. Despite all the federal facilities being
named “Processing Centers” by INS officials, their façades are that of a jail or prison.
The head of Krome Dentention Center in Miami explained the buildings looks like jails
because that’s what they are – jails (Welch, 2002).
Ill-prepared system
County and other local jails are not designed for long-term stays and cannot meet
the needs of immigrant occupants who are being held on immigration violations (as
opposed to violent offenses). The short-term model does not allow for programs in
which to participate and keep busy such as education or vocational training, so
detainees have nothing to do while they are incarcerated. There is usually no library
and the only activity is to watch television or read sparse materials in English. Many
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times such jails are overcrowded and unclean. In the Orleans Parish Prison in
Louisiana, there were reports of rodent and roach infestations, no bedding available and
no central heating or air conditioning. (Welch, 2002).
Communication barriers
The non-English speaking detainees can find it much more difficult to obey rules,
obtain needed medications or make any type of requests as the written or verbal
instructions are not given in their language. Some facilities employee Spanish-speaking
guards who can communicate with detainees, however, as detainees are from all over
the world, the Spanish option may not be helpful to them either (Welch, 2002).
Substandard healthcare
Usually, only emergency medical treatment may be provided to detainees. There
is a lack of medical staff and what staff is available is not sufficiently trained; these
factors can cause delays in treatment, misdiagnosis and inappropriate remedies. Also,
many immigrants have to pay for their medical services. Therefore, those with long-
term or chronic conditions (e.g. tuberculosis, AIDS) may not receive the care they need
because they cannot afford it. (They do not have an income while incarcerated and it is
hard for them to access any funds they might have if no one knows where they are.) In
one instance, instead of being provided medical care, a detainee with active
tuberculosis was taken and released to a homeless shelter (Welch, 2002; Lawston &
Escobar, 2009).
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Violence while incarcerated
Despite the Prison Industrial Complexes claim that immigrants are well looked
after while incarcerated, a few of the facilities have exposed as perpetuating heinous
violent atrocities against “inmates”. For example, the Krome Dentention Center in
Miami was investigated after employees who reported detainee abuse were let go. The
management of INS at the time, denied the allegations stating they had no reason to
abuse detainees. Immigrants advocacy groups cited that “Detained immigrants are a
powerless group. . . without recourse to normal political or legal channels” and
therefore, would not be able to report abuse (Welch, 2002, p. 123). The wrongdoings,
also including sexual abuse and bribery and were brought to light and many corrections
officers who were subsequently let go or reassigned. Disturbingly, some of the same
employees had been implicated in similar abuse charges years before. Another facility,
the Orleans Parish Prison in Louisiana held gladiator-style fights in which Asian
immigrants were forced to fight county inmates. The local sheriff’s department was
sued and they settled outside of court.
Maltreatment of Women and Children
Women are the fastest growing segment in prisons (not just immigrants) and
their voices again, are not heard, but silenced within the prison culture (Eriksson, 2006).
Also, women are treated disparagingly and are sometime not even segregated from the
men. They suffer more abuse from inmates and corrections officers, even being
sedated and raped (Eriksson, 2006; Lawston & Escobar, 2009; Welch 2002,). In one
instance, a Canadian woman was sentenced for an indeterminate amount of time
because she was deemed a dangerous offender for possible crimes that she might
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commit in the future. Eriksson (2006) claims that the structure of prisons targets
immigrants, indigenous peoples and women of color. Women are treated more harshly
when it comes to sentencing and breach of personal autonomy than are male prisoners.
The struggle of trafficked victims is largely not addressed as they are treated as any
other illegal immigrant and deported without considering the trauma they have suffered
or that they may have even entered the country against their will ( Eriksson, 2006;
Welch, 2001).
The Hutto facility is a private institution in Texas which houses entire families
who have not committed crimes. Still these facilities are more like prisons than housing
(Lawston & Escobar, 2009; Díaz, 2011). The Department of Homeland Security stated
in 2009 they would stop using this facility, however, it is now run by CCA as a women’s
minimum security prison (Lloyd, et al., 2009; Texas Prison, n.d.).
In the decision of Flores v. Reno (1993), the INS agreed to release children to
relatives or place them in non-secure shelters versus sending them to a juvenile
detention center. Yet by 1997, violations were already discovered. For children,
separation from parents leaves them even more vulnerable than the adult immigrants ,
with no one to protect them (Welch, 2002; Lawston & Escobar, 2009). Sometimes
adolescents are placed with adults inmates, without regard for their safety. The
Department of Health and Human Services was tasked with administering the
Unaccompanied Alien Children Program by the Homeland Security Act of 2002.
Despite this program outlining that children are not to be placed in solitary confinement,
are to have access to public libraries, and be given opportunities to participate in at
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least two ‘field trip’ type outings each week, investigations have found detention centers
in violation of all these requirements (Office of Refugee Resettlement, n.d.).
All of the aforementioned circumstances are negative conditions which contribute
to greater feelings of isolation and depression. The environment of the facilities and
long periods of confinement while awaiting a hearing, or adjudication of their cases, can
also cause stress and depression. Further, many asylees already suffer from “post
traumatic stress disorders” are ignorant of their legal rights, and fear government
authorities (Welch, 2002, p.120). In addition to the aforementioned, when non-criminal
immigrants are placed in an environment wherein they can be incarcerated alongside
convicted criminals – all conditions form a synergy of exceptional trauma and suffering.
Alternatives to Incarceration/Recommendations
It is necessary to have laws that aim to secure borders and place restrictions on
immigration as these measures will help to maintain the national security. However,
with the number of deportable and inadmissible immigrants currently detained, whether
due to illegal entry, visa overstay or criminal acts, it is illogical and not economically
feasible to incarcerate and/or deport millions of people. Therefore, the situation must be
dealt with via a real-world solution.
Proponents of detaining immigrants, and the INS, see incarceration as a
deterrent to entering the country illegally, however, Welch (2002) posits that mass
incarceration does not work and that alternatives should be explored and applied.
Alternative solutions to alleviate the problem can include: parole or limited release
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(‘checking in’ via telephone or personal visit or ankle bracelet) and limited or even
cessation of detainment of children or vulnerable populations.
Release with Limitations
The ICE has a budge to detain about 34,000 each day, and with the
overcrowding and expense of housing so many, one option is to parole detainees who
are awaiting deportation. There are a couple of options when one is provided a
conditional release: a person is allowed to post bond so they can be free while
awaiting their deportation hearing, or they are fitted with an ankle bracelet so they can
be traced (Childress, 2013). It is estimated that 89% of detainees do not pose a danger
to the public, so releasing the majority of them with conditions should not cause great
fear within the community (National Immigration Forum). This option is much cheaper
than detainment -- approximately $118 per day, vs. $8 per day for the ankle bracelet
(Linthicum, 2014).
A pilot program to evaluate alternatives to detainment on a case-by-case basis
was tested by ICE in 2010. It was deemed efficacious and was implemented
nationwide in 2013. The program, call Risk Classification Assessment (RCA), is an
automated system which accesses the need for detainment of an individual based on
their risk of flight, criminal background, health, age and other vulnerabilities.
Appropriate levels of supervision are then applied to the individual in order to ensure
compliance with immigration laws without depending solely on rout incarceration. The
ICE agency reported great success, 99% of participants appeared for their deportation
hearings (Sampson and Mitchell, 2013; National Immigration Forum, 2013).
Economically, the program costs just $5.94 per day and “if ICE limited its use of
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detention to individuals who have committed violent crimes, the agency could save
nearly $4 million a night, or $1.44 billion annually – a 79 percent reduction in costs”
(National Immigration Forum, 2013, p. 11).
The Children
Alternatives for immigrant children who are detain can and have included release
to family, friends, or foster care (Welch , 2002). Similar to the RCA program,
unaccompanied children or those separated from their parents, could also benefit from
a similar RCA program which would evaluate their situation as an individual with unique
circumstances. Partnerships in the past have proven successful when the government
is willing to work with social service agencies and other non-government organizations
(Lopez, 2010).
The Institute for Public Policy Research (2010) in the U.K. proposes that all
detainment of children immigrant desist, and that the only way to ensure this happens to
not separate them from their families by incarcerating their familial caretakers. They
further support asylum seeks should be provided with a case worker and have the
ability to stay in the community whilst their case is decided. Lastly, the Institute
recognizes that immigration laws must be upheld, but feel this can be done in a way
which ensures human dignity and family unification. One of the more successful
program they cite is the European Return Fund run by the Refugee Action In Liverpool.
In this program, families were allowed to stay in the community and worked one-on-one
with a case worker who guided them through the asylum process and also advised
them that voluntary departure was an option and provided them with counseling to
prepare them for this as a possibility. For the U.S., such a program could include the
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cooperation of immigration officials and social organizations such as Lutheran Social
Services or Catholic Charities – which are entities which already assist with refugee’s
adjustment to living in the US by providing them with employment assistance, housing,
healthcare and general support and advice. In cases in which the immigrants are not
approved for asylee status, such programs would also “establish a responsibility on
asylum-seeking families to cooperate with the return process if their application for
asylum was refused” (p.5).
Conclusion
The CCA promotes its facility as a welcoming housing center with few guards, and
refers to inhabitants as “organic material” in a “project pipeline” which brings them about
$143 million in revenue. The company further refers to the stricter immigration
enforcement and subsequent arrests as the demand which drives the market for their
services and facilities. Lloyd, et al. (2009) reports that “mass incarceration contributes
to the structural violence of economic abandonment, racial segregation, and social
infrastructure disinvestment” which causes harm to communities and society in general
(p. 95). Incarcerating thousands of immigrants takes them out of the economy and
away from their families, both of which have negative effects on the individual and their
community, friends and loved ones (Kalhan, 2010; Simon, 2007).
All residing within the U.S., including citizens, should be cognizant of the
maltreatment of immigrants because if the government is willing to violate their human
and constitutional rights, this threatens the stability of democracy for everyone
nationwide (Jonas & Tactaquin, 2004). Misconceptions abound regarding this
troublesome and controversial topic. Yet this issue must be addressed as it affect the
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lives of millions of people directly, and the rest of the nation at least indirectly. The
prevalence of the matter is evident when one examines a few numbers cited from a
Pew Research Hispanic Trend Project: there are approximately 8.4 million illegal
immigrants employed in the U.S. and at least half of all U.S. farm workers are illegal
immigrants (Goodman, 2014).
Historically, administrators have followed the overarching approach of incarceration
rather than providing addressing the causes of the problem, whether it be criminal
offenses or immigration infractions (Simon, 2007).. The Obama Administration has
spoken out on the issue and has indicated its intention to “overhaul detention…[by]
dramatically expand[ing] its predecessors’ aggressive enforcement efforts, particularly
by widening programs to enlist state and local cooperation in federal immigration
enforcement (Kalahn, 2010, p. 56). This impending policy provides added urgency to
coordinate a revamping of the detainment policies as well – considering that more and
more individuals will be affected by such policies. The decision to detain should be a
last resort option after a case is considered on its own merit and alternatives explored
.
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