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Inspector General Recommendations on Transfers of Detained Immigrants Don't Resolve Serious Issues

Judy Rabinovitz,
Special Counsel,
ACLU Immigrants' Rights Project
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December 7, 2009

Last week, the Department of Homeland Security (DHS) Office of Inspector General (OIG) released a report, “Immigration and Customs Enforcement Policies and Procedures Related to Detainee Transfers.” (PDF) Undertaken at the request of several immigrants’ rights organizations including the ACLU, the report found that the haphazard transferring of immigrants in detention has led to widespread errors and confusion, including the transfer of detainees who are never told why they are being held and who should have been eligible for release on bond.

Despite its own findings, however — and despite detailed recommendations that immigrants’ rights organizations made to the OIG — the OIG’s proposed solutions to the problem are extremely limited, merely calling for Immigration and Customs Enforcement (ICE) to follow unspecified protocols before transfers take place, and to share more information about such transfers with the immigration courts.

These recommendations do not begin to address the core problem, namely that ICE’s policy of transferring detainees has devastating consequences on immigrants’ ability to obtain fair deportation hearings. Moving detainees away from their families and lawyers — and to remote locations where it is more difficult for them to obtain lawyers — means that many detainees end up abandoning their claims rather than fighting their cases and enduring years in detention.

What is needed are concrete steps to minimize the transfer of detained immigrants, and to minimize detention itself.

Notably, the release of OIG’s report coincided with the release of two other reports, covered in the New York Times, which make the case for far broader changes. In its comprehensive report on transfer, “Locked Up Far Away: The Transfer of Immigrants to Detention Centers in the United States,” Human Rights Watch calls for ICE and Congress to use reasonable rules on detainee transfers that protect immigrants’ rights, including prohibiting transfer of detainees until after they have received bond hearings; barring the transfer of detainees who are represented by local counsel, except in exceptional circumstances; and requiring the use of alternatives to detention whenever possible.

Another report, by the bipartisan Constitution Project, “Recommendations for Reforming our Immigration Detention System and Promoting Access to Counsel in Immigration Proceedings,” (PDF), calls for a decrease in immigration detention itself — which has grown exponentially in the last 15 years from approximately 6,000 detention beds in 1994 to more than 33,000 today. The report also calls for appointed counsel for indigent immigrants in removal proceedings.

We urge the administration to adopt these broader recommendations. The rampant transferring of immigrants is a product of the overreliance on immigration detention itself. This has enormous costs — not only to families who suffer the emotional and financial hardships of separation, and to taxpayers who must shoulder the costs of unnecessary detention, but to due process itself.