Analysis of Immigration Detention Policies

August 18, 1999

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The 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) have had the combined effect of dramatically increasing the number of immigrants in Immigration and Naturalization Services (INS) detention from 8,500 in 1996 to nearly 16,000 in 1998. While detention-related problems are legion, we focus here on two: mandatory detention of non-citizens awaiting a decision as to whether they are deportable, and indefinite detention of non-citizens ordered removed to countries that will not accept them.

MANDATORY DETENTION

A rational detention policy and the right to due process both demand that INS be given, and that it fairly exercise, discretion to ensure that only those non-citizens who are a danger to the community or a flight risk are detained pending a decision on whether the non-citizen is removable from the United States.

AEDPA required the mandatory detention of non-citizens convicted of a wide range of offenses, including minor drug offenses. IIRIRA further expanded the list of offenses for which mandatory detention was required. Under these amendments, Congress required the detention of non-citizens convicted of any two crimes of moral turpitude (regardless of when the crimes were committed or potential sentence they carried), or any one crime of moral turpitude for which a sentence of at least one year was imposed (even if suspended). In other words, even if the person was convicted of a crime for which no time in prison was actually served because the crime was so insignificant, the person might be subjected to mandatory detention on account of that crime while his deportation case was pending. In addition, by expanding the definition of "aggravated felonies" to include even misdemeanors under state law, Congress dramatically increased the categories of crimes for which mandatory detention could be imposed.

Mandatory detention of non-citizens pending their immigration proceedings violates the right to due process and is inefficient and costly. The burden placed on the family of the detainee is substantial. The Attorney General should have the discretion (subject to judicial review) to release non-citizens awaiting resolution of their cases if the non-citizen is not a danger to the community or a flight risk. Mandatory detention also stymies development of alternatives to detention that would address legitimate concerns about insuring the appearance and ultimate removal of deportable aliens. 

Mandatory detention violates due process.

By depriving individuals of any opportunity to demonstrate their suitability for release, mandatory detention violates a principle fundamental to our legal system - that people cannot be deprived of liberty without due process of law. In other pre-trial settings, the courts have found that the Constitution clearly prohibits mandatory detention absent proof of danger or a flight risk. Federal courts in New York, Massachusetts, Illinois, Michigan, Minnesota, Colorado, Oregon and California have come to the same conclusion in the immigration context. 

Furthermore, many of those subject to mandatory detention are ultimately found eligible for relief from deportation and are not deported. For example, a lawful permanent resident ("LPR") who is deportable based on a crime that is not deemed an "aggravated felony" remains eligible for naturalization. In addition, a non-LPR with an aggravated felony conviction may be eligible for relief as well, depending on the circumstances. These individuals have an obvious incentive to appear for their immigration proceedings and are unlikely to flee. Yet, they too are subject to mandatory detention, notwithstanding alternative means to insure appearance at hearings, such as bond and reporting requirements. In addition, many of those subject to mandatory detention pose no danger to the community. They have been convicted of relatively minor crimes, or have since demonstrated rehabilitation. 

Mandatory detention is irrational and costly.

Given INS's limited detention space, it is irrational and inefficient to require unnecessary and costly detention of individuals who pose neither a danger to the community nor a flight risk. The INS recognizes this and has proposed legislation to restore discretion to release such non-citizens. Detention costs the INS on average $58 a day per detainee,and one-half million dollars per day cumulatively, to detain aliens in state and local jails. In addition, many of those detained are longtime residents of the United States with U.S. citizen family members who depend on them for economic and emotional support. Detention interferes with their ability to work and support their families, resulting in additional costs to the government, which must often step in to provide for these families. According to Human Rights Watch, detainees held in prisons and jails are subjected to inhumane living conditions such as inadequate and poor nourishment, lack of clothing, and overcrowding and that correctional officers often lack the language skills necessary to meet special needs of immigrants. 

Mandatory detention interferes with the development of detention alternatives.

Mandatory detention also hampers INS initiatives to develop alternatives to detention. These initiatives, such as the ambitious 3-year contract INS entered into with the Vera institute for Criminal Justice to test an "Appearance Assistance Project," offer the possibility of developing alternatives to detention that could more efficiently and humanely insure the appearance of non-citizens at their immigration hearings and restore integrity to the removal process. The new detention mandates limit attempts to test the effectiveness of these alternatives to detention.

Non-citizens who do not pose a risk to the community or flight risk should be released pending resolution of their cases. 

INDEFINITE DETENTION

The detention mandates described above apply to non-citizens awaiting a determination as to whether they are removable from the United States. Indefinite detention applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless. INS officials often refer to these individuals as "lifers." This reflects the current INS policy of detaining indefinitely non-citizens ordered removed, even if there is virtually no chance they will actually be removed. "Lifers" come from countries such as Laos, Vietnam, Iraq, Cuba, Iran, and the former Soviet Union.

Prior to 1990, there was a six-month limit on how long INS could detain a non-citizen with a final order of deportation. After the six-month period expired, the non-citizen had to be released under supervision unless he or she was obstructing deportation. The law was changed in 1990 when Congress created an exception to the six-month release rule for "aggravated felons." In 1996, IIRAIRA and AEDPA expanded the definition of "aggravated felony." As a direct result, the number of non-citizens subjected to indefinite detention increased dramatically. According to the INS, approximately 3,500 detained non-citizens cannot be removed. They face life-long detention for crimes committed for which they have already served their criminal sentences. The INS asserts the unbridled power to indefinitely detain any non-citizen it has failed to remove from the United States if it decides that person may be dangerous.

Indefinite detention is a feature we expect of repressive regimes, not of our own. The INS's authority to detain a non-citizen ordered removed derives from one purpose: effectuating removal. Once it becomes clear that removal is not possible, the rationale for continued detention evaporates and the non-citizen's liberty rights demand that he or she be released under supervision. It is grossly unfair to detain a person forever, after they have served their time in prison, just because the INS has been unable to remove them.

The courts are beginning to agree. Several federal district courts have recently ruled that indefinite detention with no realistic prospect of removal is unconstitutional. In July of 1999 a panel of five district court judges in Seattle reached the same conclusion in five cases that should have nation-wide implications. The Ninth Circuit Court of Appeals upheld that decision on April 10, 2000.

It is time for Congress to agree as well. The "Restoration of Fairness in Immigration Law Act" would reign-in the power of the INS to detain non-citizens ordered removed after it becomes clear that they are clearly not removable. Under the legislation, such persons would be released under conditions of supervision designed to ensure their ultimate removal should removal become possible in the future. The bill would also end mandatory detention of non-citizens whose immigration cases are pending, and correct a number of other problems in the immigration laws. 

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