America's detention system for illegal immigrants has mushroomed in the last decade, a costly building boom that was supposed to sweep up criminals and ensure that undocumented immigrants were quickly shown the door.
An official Immigration and Customs Enforcement database, obtained under the Freedom of Information Act, showed a U.S. detainee population of exactly 32,000 on the evening of Jan. 25.
The data show that 18,690 immigrants had no criminal conviction, not even for illegal entry or low-level crimes like trespassing. More than 400 of those with no criminal record had been incarcerated for at least a year. A dozen had been held for three years or more; one man from China had been locked up for more than five years.
Nearly 10,000 had been in custody longer than 31 days — the average detention stay that ICE cites as evidence of its effective detention management.
Especially tough bail conditions are exacerbated by disregard or bending of the rules regarding how long illegal immigrants can be detained.
Based on a 2001 ruling by the U.S. Supreme Court, ICE has about six months to deport or release illegal immigrants after their case is decided. But immigration lawyers say that deadline is routinely missed. In the system snapshot provided to the AP, 950 people were in that category.
The detainee buildup began in the mid 1990s, long before the 2001 attacks on the World Trade Center and the Pentagon. Since 2003, though, Congress has doubled to $1.7 billion the amount dedicated to imprisoning illegal immigrants, as furor over “criminal aliens” intertwined with post-9/11 fears and anti-illegal-immigrant political rhetoric.
But the dragnet has come to include not only terrorism suspects and cop killers, but an honors student who was raised in Orlando, Fla.; a convenience store clerk who begged to go back to Canada; and a Pentecostal minister who was forcibly drugged by ICE agents after he asked to contact his wife, according to court records.
Immigration lawyers note that substantial numbers of detainees, from 177 countries in the data provided, are not illegal immigrants at all. Many of the longest-term non-criminal detainees are asylum seekers fighting to stay here because they fear being killed in their home country. Others are longtime residents who may be eligible to stay under other criteria, or whose applications for permanent residency were lost or mishandled, the lawyers say.
Still other long-term detainees include people who can’t be deported because their home country won’t accept them or people who seemingly have been forgotten in the behemoth system, where 58 percent have no lawyers or anyone else advocating on their behalf.
ICE says detention is the best way to guarantee that illegal immigrants attend court hearings and leave the country when ordered.
“It’s ensuring compliance, and if you look at the stats, for folks who are in detention, the stats are pretty darn high,” said ICE spokeswoman Cori Bassett.
By comparison though, most criminal suspects, even sometimes those accused of heinous offenses, are entitled to bail.
For detainees, ICE agents make an initial determination whether someone is eligible for bond. Federal law says most criminals, some asylum seekers, arriving illegal immigrants who have problems with their documentation and those recently ordered removed from the country must remain in detention.
“We’re immigrants, and it makes it seem like it’s worse than a criminal,” said Sarjina Emy, a 20-year-old former honors student who spent nearly two years in a Florida lockup because her parents’ asylum claim was denied when she was a child. “I always thought America does so much for justice. I really thought you get a fair trial. You actually go to court. (U.S. authorities) know what they are doing. Now, I figured out that it only works for criminal citizens.”
Some advocates and lawyers complain that ICE often stretches the definition of non-bondable categories to keep illegal immigrants in custody. Illegal immigrants can appeal adverse determinations, but while their claim works through the court system, they remain jailed.
For example, Zoubir Bouchikhi, an Algerian imam who has lived legally in the United States for 11 years, said by phone from a Houston detention center that he was placed in custody early this year and classified as “an arriving alien,” making him ineligible for bail. A homeowner with several U.S.-born children, Bouchikhi said he last entered the United States in 2006, on a legal visa.
The use of detention to ensure illegal immigrants show up for immigration court comes at a high cost compared to alternatives like electronic ankle monitoring, which can track people for considerably less money per day.
Based on the amount budgeted for this fiscal year, U.S. taxpayers will pay about $141 a night — the equivalent of a decent hotel room — for each illegal immigrant detained, even though paroling them on ankle monitors — at a budgeted average daily cost of $13 — has an almost perfect compliance rate, according to ICE’s own stats.
Critics argue that since the immigration court system lacks the constitutional protections granted accused murderers and rapists, taxpayers are grossly overspending for a system that is inhumane and unfair.
“This is not an economically rational way of ensuring people show up, and it doesn’t further justice,” said Judy Rabinovitz of the American Civil Liberties Union’s Immigrants Rights Project.
For years, ICE and its predecessor, the Immigration and Naturalization Service, had the power to detain illegal immigrants. With little bed space or public clamor to lock people up, though, millions of foreigners quietly went about life in the United States.
In 1996, Congress passed a pair of laws requiring that illegal immigrants who committed crimes be locked up for deportation, beginning a dramatic run-up in incarcerations. So-called “criminal aliens” — illegal immigrants convicted of a crime, including some misdemeanors like low-level drug crimes — became mandatory detainees even if their original crime brought no prison time.
A system that housed 6,785 illegal immigrants in 1994 now holds nearly five times that amount in 260 facilities across the country, most under contract with local governments or private companies. For this fiscal year, ICE has enough money budgeted for 33,400 people on any given night.
Groups that advocate limits on immigration see no problem with the growing use of incarceration, which they say is a deterrent.
“Just because you haven’t committed a crime doesn’t mean that you shouldn’t be held in detention until you can be deported,” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform. Even though not every illegal immigrant can be held, “if you bust a certain amount, it sends a message.”
The message hasn’t resonated with Emy, who was raised in Orlando, Fla., but spent 20 months in a detention center even though she had no criminal record. She traded her Baby Phat clothes for a gray uniform and window-shopping at the mall for a law library behind razor wire.
Her only crime? Her parents, who feared her father’s political affiliations endangered the family, brought her and two brothers to the United States from Bangladesh when she was 5, according to court documents.
She doesn’t speak Bangla and never imagined a future without college. No one in her family realized her father’s work certificate from the Labor Department didn’t equate to legal immigration status.
Family members were rounded up in July 2007, treated as fugitives on a dated but active deportation order.
Her parents were deported first. Emy languished in custody while continuing her fight to stay.
But because the asylum application had been filed on behalf of the entire family, only the parents got a hearing. Emy never saw a judge, according to Emy and her attorney.
“Justice is not being served,” she said from a prison pay phone.
In January, a federal appeals court denied her petition to stay in the U.S. Fearing she’d celebrate another birthday behind bars, Emy agreed to be deported and left the country Feb. 18.
Immigration law “is the only United States law where we punish the children for the actions of their parents,” said Emy’s attorney, Petia Vimitrova Knowles.
Immigration violations are considered civil, something akin to a moving violation in a car, so the government can imprison illegal immigrants without many of the rights criminals receive: No court-appointed attorney for indigent defendants, no standard habeas corpus, no protection from double jeopardy, no guarantee of a speedy trial.
Most illegal immigrants are navigating a complex legal system without an attorney. Fifty-eight percent went through immigration proceedings without an attorney in fiscal year 2007, according to the Executive Office for Immigration Review, a branch of the U.S. Justice Department.
Those who do have an attorney have little recourse if that lawyer turns out to be incompetent. In one of his last acts as Bush administration attorney general, Michael Mukasey reversed years of precedent by ruling that illegal immigrants, unlike criminal defendants, cannot appeal on the grounds of incompetent counsel.
The Migration Policy Institute, a nonpartisan think tank that includes former officials from Republican and Democratic administrations, recently issued a study calling for numerous changes in the Department of Homeland Security, which oversees ICE, including allowing better access to legal counsel for incarcerated illegal immigrants.
“People can be lost in that vortex, and they can be lost for years,” said Donald Kerwin, who wrote the report with former INS Director Doris Meissner. “It’s the reason why legal counsel is so crucial.”
But, ICE officials often argue, illegal immigrants largely hold the keys to their own freedom. If they simply agree to return to their home country, they can go, Bassett said.
“They’re making a choice (that) they’re going to appeal, which is their right,” she said.
But even giving up, or winning a claim, doesn’t always spell freedom because ICE acts as police officer, arraignment judge, jailer and prosecutor. It has sole jurisdiction over when a detained illegal immigrant is sent back after a deportation order is issued, and can continue to hold illegal immigrants while it appeals a decision that didn’t go its way.
In 2007, an immigration judge ruled that Samuel Kambo, a former energy minister of Sierra Leone who had a master’s degree and no criminal history, should be granted permanent residency after being detained for eight months. But ICE continued to hold him for four more months while it appealed. Kambo was released only after his lawyer went to federal court and made a successful constitutional challenge.
In another telling case, Ahmad Al-Shrmany, a 34-year-old Iraqi with no appeal pending, begged for a year to be deported and yet remained in detention. He wanted to be allowed to go to his native Iraq or his adopted Canada, where he had been granted asylum a decade ago. A lawyer filed a habeas corpus petition in December that went unanswered.
“Just deport me. That’s your job,” he said in a late January interview with the AP that ICE officials tried to block minutes before it was scheduled at a Houston lockup.
Less than a week after the interview, Al-Shrmany was deported to Canada, said his lawyer, Afreen Ahmed. Bassett said later the timing of the deportation was “completely coincidental.”
In custody, Al-Shrmany had grown distraught.
“In Iraq, you can get killed one time. Here, this is not the life I was wishing for,” he said from a cinderblock meeting room.
Immigrant advocates say ICE prefers incarceration for non-criminal illegal immigrants, even though alternatives are available, for one major reason: to strong-arm people.
“When you’re there for weeks and weeks or months or months, your determination to fight your charges is reduced,” said Judy Green, a policy analyst with Justice Strategies, a nonpartisan think tank on incarceration issues. The goal is “to keep intense pressure on detainees to agree to removal and not to fight on whatever grounds they have for relief.”
The Rev. Raymond Soeoth, a Pentecostal minister from Indonesia who had never been imprisoned, said his lengthy incarceration — and the uncertainty of how long it would last — wore on him as he fought his immigration case and pursued a lawsuit accusing ICE officials of forcibly drugging him and other detainees.
“We just wait. We cannot do anything,” said Soeoth, who was released after more than two years, given a special visa as part of the government’s settlement of the drugging lawsuit.
ICE officials argue that illegal immigrants won’t show up to hearings, or leave when ordered out, unless they’re imprisoned. About a third of released illegal immigrants with no electronic monitoring failed to show up to immigration court proceedings in fiscal year 2007, according to the Executive Office of Immigration Review.
Bassett said the failure-to-appear rate for actual deportation jumps to 95 to 97 percent with no electronic monitoring, the main reason groups like FAIR push for more use of detention.
Still, electronic monitoring has proven effective. ICE’s intensive supervision program — which includes electronic monitoring, curfews and other probation-like provisions — has a 99 percent appearance rate at immigration hearings and 95 percent at final order hearings, according to ICE’s fact sheets. The agency says 94 percent of those allowed to remain on electronic monitoring after they’ve been ordered deported leave when their appeals are exhausted.
The Migration Policy Institute says the agency should use electronic monitors to replace detention of illegal immigrants without criminal records or even those with only nonviolent records who don’t pose a risk to the community.
“What you’ve done is you’ve eliminated any fear of flight. The whole rationale for detention is to keep people from absconding, and in rare cases, protect the public,” Kerwin said. “Alternatives can allow you to use detention space more judiciously.”
Currently, an average of 2,700 illegal immigrants per day are on electronic monitoring in “alternative to detention” programs budgeted to accommodate 13,000 people this year.
Immigrant advocates complain the agency is using the monitors mostly to supervise people who previously would have been released on bond or on their own recognizance — not to reduce the number of people incarcerated.
“They’re not trying to reduce bed space. Their goal is to have everybody in some kind of custodial program,” said Andrea Black, coordinator for the nonprofit Detention Watch Network.