Immigration Detention Click for a Printable Version of this Article The passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) essentially mandated that the Immigration and Naturalization Service (INS) arrest, detain, and deport large segments of the U.S. immigrant population. Under these laws, the decision to detain is subject to very little judicial review. Since the INS is a relatively inaccessible government agency, it is essential that communities be aware of the policies and conditions of U.S. immigration detention and the related human rights concerns. Indefinite Detention: The INS defines an "unremovable" detainee as "an alien with a final order of removal who cannot be removed because their country of birth/nationality will not accept them or the U.S. does not have a diplomatic relationship with that country and therefore removal is not possible." According to the INS, there are currently 3,435 "unremovable" people in the Service’s custody. The breakdown according to nationality is: 1,750 Mariel Cubans, 787 other Cubans, 429 Vietnamese, 102 Cambodians, 185 Laotians, and 182 others [From information compiled by Helen Morris of CLINIC, "Update on Indefinite Detainees," 10/21/98]. According to the INS, "In addition to Cuba, nationals of Vietnam, North Korea, Serbia, Croatia, Romania, Ethiopia, Sudan, Libya, Iran, Iraq, Lebanon, Poland, Liberia, and the former Soviet Union have all been considered "long-termers" at one time or another. It all depends on country and diplomatic conditions" [From "Long-Term Detainees," follow up to 8/12/98 NGO/INS Meeting on Detention Statistics]. People from these countries may find that their detention has literally no end in sight. Some people have been held for three years, and even longer. Most have little chance to be released [From the Lutheran Immigration and Refugee Service (LIRS) Fact Sheet, Fall 1998]. The INS is planning to turn long-term detainees over to the Bureau of Prisons [From Summary of Proceedings: NGO/INS Meeting on Detention Statistics 8/12/98]. Expanded Definition of "Aggravated Felony" and Retroactivity of the Law: Conviction for an "aggravated felony"—as defined by immigration law—makes an immigrant legally deportable. The IIRIRA expanded the definition of "aggravated felony" to encompass over 30 offenses, including perjury, forgery, certain gambling offenses, and failure to appear before a court for certain charges. Moreover, the law is retroactive, making even legal residents who have already completed their sentences potentially eligible for deportation [From Interpreter Releases 6/8/98]. These individuals may be detained regardless of how long they have lived in the U.S., how long ago they committed a crime, and whether they have been rehabilitated. Mandatory Detention: Because of new mandatory detention provisions, non-citizen ex-offenders who have been completely rehabilitated would likely have no opportunity to be considered for release from detention during immigration proceedings, regardless of family circumstances or community ties. These laws even apply to legal permanent residents who have lived almost their entire lives in the United States, served in the U.S. military, and have U.S. citizen spouses and children. Today, hundreds of families are suffering as a result of this cruel separation [From LIRS Fact Sheet, Fall 1998]. The INS has estimated that it would need 35,000 beds to accommodate all those who are subject to detention under the 1996 laws [From Summary of Proceedings: NGO/INS Meeting on Detention Statistics 8/12/98]. Detention Capacity: As of September 1998, about 16,000 people were in detention on any given day, representing an almost threefold increase in six years [From LIRS Fact Sheet, Fall 1998]. In FY 1996, the average daily population in INS detention was 8,592; it is projected that the average daily population in FY 2001 will approach 24,000 [From Refugee Reports vol. 19, #6, 6/98]. The immigration detention system is the most rapidly expanding prison program in the United States, costing taxpayers millions of dollars a year. In 1998, the INS will spend $692 million on detention and deportation alone [From LIRS Fact Sheet, Fall 1998]. The Office of Detention and Deportation currently has a budget of $750-$800 million [From Summary of Proceedings: NGO/INS Meeting on Detention Statistics 8/12/98]. Detention Centers: The INS has ten of its own detention centers, or Service Processing Centers (SPCs), solely for people detained for immigration-related purposes. Six more similar centers are run by private, for-profit companies like the Corrections Corporation of America (CCA) which contract with the INS [From Refugee Reports vol. 19, #6, 6/98 and "Bids for Asylum Bring More Grief: They arrive in fear, languish in custody," by Juan Forero, Star-Ledger 11/22/98]. In January 1998, the INS issued 12 standards for the treatment of immigration detainees at these facilities. However, the standards do not apply to local county or city jails where sixty percent of all immigration detainees are held. Although the INS often pays county jails housing immigration detainees up to twice the amount per day that jails receive for the incarceration of those serving criminal sentences, the INS claims to have no ability to require the jails to adhere to the detention standards [From LIRS Fact Sheet, Fall 1998]. Conditions in Local Jails: People held for immigration reasons are administrative detainees and are not being detained for punishment [From LIRS Fact Sheet, Fall 1998]. However, INS detainees may face a host of problems in local jails, some of which are designed as short-term facilities, not for the often-lengthy stays of the detainees. Jails frequently offer inadequate access to legal counsel, medical care, telephones, recreation, or educational and vocational activities. Often, detainees may be transferred between facilities, further limiting their ability to see family and friends or legal counsel. Physical abuses have also been reported, and, in some cases, INS detainees are not differentiated from those people currently serving time for criminal convictions in the same locations [From "Locked Away: Immigration Detainees in Jails in the United States," by Human Rights Watch, 9/98]. Access to Legal Counsel: Although pro bono and private attorneys work on behalf of asylum-seekers and other immigrants, there is no guarantee of legal representation for immigration detainees. The burden is on detainees to find and pay for their own legal counsel. Finding an attorney from detention can be incredibly difficult, especially for people who do not speak English, or who are held in detention centers or jails in isolated locations or where access to telephones is limited. According to the Executive Office of Immigration Review (EOIR), only 10% of immigrants in detention are represented by counsel. What’s more, detainees who already have an attorney may be transferred to a far-away facility, without any notice to their attorney or their family [From LIRS Fact Sheet, Fall 1998]. Asylum-Seekers: In 1997, there were 13.6 million refugees worldwide. Only one-half of one percent of these people fearing to return to their homeland fled to the United States to ask for asylum. Under the new immigration laws of 1996, asylum-seekers arriving at U.S. borders must be detained, at least until they demonstrate a "credible fear" of returning to their country. While asylum-seekers are technically eligible for release from detention after they have been shown to have "credible fear," most remain detained until they are granted asylum. Even asylum-seekers with family in the United States who are ready and waiting to care for them are often not released. This means months, and if the case is appealed, years, behind bars, separated from family, all at taxpayers’ expense. According to the INS, 5,000 – 6,000 asylum-seekers are detained annually [From LIRS Fact Sheet, Fall 1998]. According to standards set by the United Nations High Commissioner for Refugees, "As a general rule, asylum seekers should not be detained" [UNHCR Guidelines on Detention of Asylum Seekers, p.3]. Women in Detention: Women asylum-seekers are especially vulnerable to abuse, neglect, and denial of services within the INS detention system [From "Liberty Denied: Women Seeking Asylum Imprisoned in the United States," by the Women’s Commission for Refugee Women and Children, 4/97]. Women make up about 7% of the overall detained population. Because of the smaller numbers, the INS has less space reserved for women in their own facilities, and is more likely to place women detainees in local jails mixed with people serving criminal sentences. Additionally, because of their small numbers, in certain facilities women may be denied services that are provided to men in the same facility, such as translation services and English classes [From LIRS Fact Sheet, Fall 1998]. Children in Detention: The daily average number of minors in detention is between 400-500 [From Summary of Proceedings: NGO/INS Meeting on Detention Statistics 8/12/98]. Over 200 children at any given time are in INS custody for periods longer than 72 hours. The detention of asylum-seekers, and especially of children, exhibits a disregard for international standards such as those set by the United Nations High Commissioner for Refugees and the United Nations Convention on the Rights of the Child [From "Slipping through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service," by Human Rights Watch, 4/97] Families in Detention: Few facilities are available to hold families together during immigration proceedings. A mother may be placed in county jail while her child is shipped to a facility in another state [From LIRS Fact Sheet, Fall 1998]. There is a plan to begin a family unit shelter in Ft. Bliss, near El Paso [From Summary of Proceedings: NGO/INS Meeting on Detention Statistics 8/12/98]. Reposted courtesy of the Washington Alliance for Immigrant and Refugee Justice. For more information, contact jessica.levy@wairj.org. For further information on these or any other immigration issues, please contact Miller Mayer. The contents of these web pages are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney. Copyright © 2002 True, Walsh & Miller, LLP. Attorneys at Law The Commons, 202 East State Street, Ithaca, New York 14850 phone: 607-273-4200, fax: 607-272-6694, E-mail: twm@twmlaw.com