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Updates will resume December 10.
Individuals detained at an immigration prison in Henderson, Nevada are regularly subjected to conditions that violate ICE’s own standards or coerced into signing legal documents that adversely affect their cases, a report produced by the immigration clinic at the University of Nevada Las Vegas School of Law claims. UNLV Immigration Clinic, The Conditions of Immigration Detention in Nevada: A Report on the Henderson Detention Center (November 19, 2013). The report is based on interviews with detainees conducted by students in the immigration clinic.
The Henderson Detention Center (HDC) is a unit of the Henderson police department that contracts with ICE, the U.S. Marshals Service, and other entities to provide detention services. ICE has access to 300 beds within the HDC; on average it used 254 of those beds during the 2013 fiscal year. Conditions of Immigration Detention in Nevada at 3.
The student investigators reported on detainees’ access to the facility’s law library, counsel, pro bono services, student attorneys, telephones, mail, and medical care. The report also addressed claims that detainees are sometimes coerced into signing legal documents and have experienced verbal or physical abuse by staff.
According to the report, only nine of twenty-nine individuals interviewed were represented by counsel in their removal cases. Conditions of Immigration Detention in Nevada at 5-6. Some detainees also said that their legal mail was opened, presumably by prison staff. Conditions of Immigration Detention in Nevada at 6. One detainee claimed that an HDC officer “tried to coerce him to sign a document; that detainee also faced retaliation for his refusal to sign.” Conditions of Immigration Detention in Nevada at 6.
Interestingly, the report notes that its attempts to conduct follow-up interviews with detainees were thwarted by HDC officials after the students provided HDC with a draft copy of this report. Conditions of Immigration Detention in Nevada at 4. Less than two days after receiving the draft, HDC officials allegedly informed student attorneys that the facility had changed its policy on allowing student attorneys to speak with detainees: instead of allowing students to meet with any detainee who wanted to speak with them, HDC suddenly imposed more stringent demands: “Under the new policy, student attorneys need a letter from their supervising attorney listing the names of the detainees that they want to interview. In addition, the student attorneys must present G-28 forms (attorney representation forms) signed by each detainee that they wished to meet.” Conditions of Immigration Detention in Nevada at 24-25. The report added that this practice “directly conflicts with ICE’s NDS, which specifically states that attorney representation forms are not required for prerepresentation meetings or meetings not related to immigration, such as meetings about the conditions of detention.” Conditions of Immigration Detention in Nevada at 25.
Students at the University of Miami’s immigration law clinic reported a similar experience with the Glades County Jail in Moorehaven, Florida. According to a press release, “The [Glades County Jail] has imposed obstacles to law students visiting with their clients in order to prepare for court.” Students have planned a news conference for today (Thursday, November 21, at 11:00 am EST) to discuss their concerns about access to detainees at the Glade County Jail as well as other concerns about detention conditions there.
These reports suggest to me that prison officials at these facilities are attempting to shield their activities from public view. This is particularly distressing given that we're quite sure that much has and does go awry inside immigration prisons--the most recent of which involves failures to track and address allegations of sexual abuse, according to a report of the U.S. Government Accountability Office.
Sadly, attempts to obscure the goings-on of prisons are not unheard of and contribute to a characteristic of prisons that Justice William Brennan’s poignant described a quarter-century ago: “Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness.” O’lone v. Estate of Shabazz, 482 U.S. 342, 354 (1987) (Brennan, J., dissenting).
A secured facility should not become a black hole. On the contrary, the public’s access to information about conditions inside HDC or any other prison is critical to ensuring that legal and moral standards of conduct are being met. It is incumbent upon ICE to do all it can to promote transparency in the immigration detention estate including at facilities owned or operated by third parties.
In a document filed with the Securities and Exchange Commission, the GEO Group, the country’s second largest private prison operator, provided a fascinating glimpse into its business operations. SEC Form S-4, The GEO Group, Inc. (Nov. 7, 2013). In SEC Form S-4, the company detailed its worldwide reach. According to the filing, GEO operates in the United States, Australia, South Africa, the United Kingdom, and Canada. Overall it manages approximately 72,000 beds and tracks more than 70,000 people in community-based supervision programs. Id. at 1. Within the USA, it currently operates in 33 states in addition to holding extensive contracts with various units of the federal government. Id. at 2.
Business worldwide and in the United States appears to be thriving. Globally, the company brought in just shy of $1.5 billion ($1,479,062,000) in revenue during 2012. Id. at 14. Of this, $975,445,000 came from a category it calls “U.S. Corrections & Detention” and another $291,891,000 came from its GEO Community Services unit. As I wrote previously, GEO Community Services includes the electronic monitoring service that it provides to ICE, among other products.
Among the most remarkable bits of information was the extent to which GEO relies on immigration detention to boost its sizable bottom line. The company reported that 17.3% of its revenue comes from contracts with ICE. Id. at 32. Another 17.0% of its revenue comes from the Federal Bureau of Prisons and 11.4% of its revenue from the U.S. Marshals Service. While the BOP and USMS are responsible for detaining individuals charged with or convicted of all types of federal crimes, immigration offenses have been at or near the top of the list of most commonly prosecuted federal crimes in recent years so a sizable percentage of the money GEO earns from the BOP and USMS is likely attributable to the federal government’s criminalization of immigration activity. Indeed, a different document submitted to the SEC recently (a Schedule 14A) states that the company signed a contract in October 2012 with the USMS "for the housing of up to 320 federal detainees at our Aurora Detention Facility." According to GEO's web site, the Aurora facility houses immigration detainees.
Interestingly, GEO openly acknowledged that legal reforms may adversely affect their business success. The company noted that “[i]mmigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.” Id. at 32. Likewise, it explained that “amending criminal laws and regulations to reduce prisoner headcount by reducing or eliminating mandatory minimum sentencing guidelines, especially those relating to non-violent drug possession or technical parole violations” “could have adverse effects on our industry.” Id. at 6.
To be fair, the company did not suggest that it opposes liberalization of immigration or criminal laws. Of course, according to a report in the Columbia Journalism Review, the private prison industry collectively is heavily involved in lobbying key legislators.
Moreover, to protect itself from possible reductions in prison populations, the company recently becoming heavily involved in providing electronic monitoring services sought by government agencies operating alternatives to detention (ATD). The company expects this line of business to grow, Id. at 7, and is positioning itself to capitalize on this growth. Indeed, as I reported in August, GEO has a $3.3 million contract with ICE to provide monitoring services for its ATD programs.
The U.S. Court of Appeals for the Eleventh Circuit held that a Florida conviction for possession of cannabis with the intent to sell or deliver, Fla. Stat. § 893.13(1)(a)(2), is not a drug trafficking type of aggravated felony. Donawa v. U.S. Attorney General, No. 12-13526, slip op. (11th Cir. Nov. 7, 2013) (Martin, Jordan, and Suhrheinrich, JJ.). Judge Martin wrote the panel’s decision. Michael Vastine, a professor at St. Thomas University School of Law and past guest blogger on crImmigration.com, successfully argued on Mr. Donawa’s behalf.
This case involved an LPR convicted of the possession of cannabis with intent to deliver offense as well as another drug-related crime. The only question before the Eleventh Circuit was whether the possession conviction constitutes drug trafficking as the immigration judge and Board of Immigration Appeals concluded, thereby precluding Mr. Donawa from eligibility for cancellation of removal.
The court began by noting that the categorical approach requires a conclusion that a state conviction “necessarily involves facts equating [to] the generic federal offense.” Donawa, No. 12-13526, slip op. at 5-6. That is, the elements of Florida’s possession of cannabis with intent to deliver crime must match the definition of “drug trafficking” as used for immigration law purposes. It is irrelevant what actually led to Mr. Donawa’s conviction. All that matters is what he was convicted of doing.
Moreover, building off the Supreme Court’s June 2013 decision in Descamps v. United States, 133 S. Ct. 2276 (2013) (analyzed here on crImmigration.com), the court noted the limited applicability of the modified categorical approach. That method of statutory interpretation allows the court to examine the record of conviction when the statute of conviction is divisible—meaning a conviction under some parts of the statute lead to removability while a conviction under other parts do not. The modified categorical approach, the court explained, “is applied only when a single statute lists a number of alternative elements that effectively create several different crimes, some of which are aggravated felonies and some of which are not.” Donawa, No. 12-13526, slip op. at 6. It does not allow a court to examine the facts underlying a conviction simply because the elements of the statute of conviction reach a wider array of conduct than does the generic definition of “drug trafficking” used for immigration law purposes.
With that analytical framework in place, the court turned to the Florida offense Mr. Donawa was convicted of violating, possession of cannabis with intent to deliver, to determine whether it constitutes drug trafficking. The INA explicitly states that “drug trafficking” is defined in 18 U.S.C. § 924(c). INA § 101(a)(43)(B). Section 924(c), in turn, provides, in whole: “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.”
One of the many crimes that fit that definition—and the one that is most analogous to the Florida offense—is the federal crime of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1). That federal offense, however, differs from the Florida possession offense in one critical way: “The federal statute, in contrast to Florida’s current law, requires the government to establish, beyond a reasonable doubt and without exception, that the defendant had knowledge of the nature of the substances in his possession.” Donawa, No. 12-13526, slip op. at 8.
The result of this disparity is that “[a] person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. That same person could not be convicted of the federal crime.” Donawa, No. 12-13526, slip op. at 9. Accordingly, the court held that the Florida crime is not a drug trafficking type of aggravated felony.
Many thanks to Marc-Tizoc González for bringing this case to my attention.
By Andrea Saenz
This week, for the first time in the United States, detained immigrants who cannot afford attorneys will be provided with counsel through the New York Family Unity Project (NYIFUP). The program is a one-year pilot, funded through a grant from the forward-leaning New York City Council, which will provide representation for nearly 200 detainees at the Varick Street Immigration Court in New York City.
The program grew out of research by the New York Immigrant Representation Study, under the leadership of now-Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit, demonstrating clearly that detainees without representation have virtually no chance of success in their removal cases. The NYIFUP is the result of advocacy by a coalition of organizations, led by the Center for Popular Democracy, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, the Vera Institute of Justice, and the Immigration Justice Clinic at Cardozo School of Law.
As part of the NYIFUP advocacy team at Cardozo, seeing the pilot launch at Varick Street is incredibly exciting, and we hope to be a model across the country. There is a real opportunity for our new mayor and City Council to expand this project and keep New York the most immigrant-friendly city in America, and we hope to go statewide in the future.
At the same time, the coalition released a white paper entitled The New York Immigrant Family Unity Project: Good for Families, Good for Employers, and Good for All New Yorkers. The report shows how the lack of counsel for detained immigrants leads to unnecessary deportations that devastate families, undermine our commitment to due process, and impose huge costs on local governments and employers. The study’s findings include:
- State agencies and employers face some $13.4 million in costs relating to detention and deportation.
- New York State employers pay out an estimated $9.1 million in turnover-related costs a year when they are required to replace detained or deported workers
- Detention or deportation of a parent is linked to school dropout rates among children, limiting long-term earning
potential, decreasing tax revenues, and increasing reliance on public health insurance. This translates into $3.1 million in costs a year.
- Detentions and deportations of parents also cause significant costs to the NY State Children’s Health Insurance Program when bread-winning parents are deported.
- Finally, the state pays over half a million dollars a year to provide foster care to the children of detained or deported New Yorkers.
The report concludes that if NYFIFUP was expanded statewide, it would save $5.9 million of these costs, making it both a smart economic investment for the state and business, and a strong commitment to due process, family unity and our history as a nation of immigrants.
Andrea Saenz is a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.
All across the United States, people will celebrate Veterans Day this weekend and on Monday, the day this holiday is officially marked. This is an opportune moment to reflect on the veterans who find themselves targeted for removal from the country they risked their lives to defend.
I haven’t seen any reliable numbers on the number of removed veterans. One advocacy group run by a deported veteran, the Banished Veterans Support House, estimates that as many as 40,000 veterans have been deported since 1996, but I don’t have any way of verifying that claim. What is true, though, is that tens of thousands of noncitizens serve in the armed forces—35,000 according to the Washington Post. All of these individuals are subject to removal if they fall afoul of immigration law.
As crImmigration.com readers are well aware, the line dividing compliance with immigration laws from noncompliance is notoriously thin. People can violate immigration law in all manner of ways—anything from a student who takes too few credit hours to conviction of any number of crimes.
The stress of military life would seem to accentuate this risk, especially for people who serve in combat. According to a study done by the Rand Corporation, “Nearly 20 percent of military service members who have returned from Iraq and Afghanistan — 300,000 in all — report symptoms of post traumatic stress disorder or major depression, yet only slightly more than half have sought treatment.” On occasion, this trauma can lead to criminal behavior. A report by the National Center for PTSD indicated that veterans who suffer from PTSD “committed 13.3 violent acts in the prior year, compared to 3.54 acts for [v]eterans without PTSD.” Cathy Ho Hartsfield, Deportation of Veterans: The Silent Battle for Naturalization, 64 Rutgers Law Review 835, 851 (2012) Indeed, of the approximately 140,000 veterans imprisoned in state or federal prisons in 2004, 30% reported a recent history of mental health services.
Acknowledging the trauma of combat, U.S. Representative Mike Thompson, a California Democrat, introduced a bill that would require DHS—prior to initiating removal proceedings against an an honorably discharged veteran—that veteran’s naturalization eligibility, “and any hardship to the Armed Forces, the alien, and his or her family if the alien were to be placed in removal proceedings.” H.R. 932, Support and Defend Our Military Personnel and Their Families Act § 5. This bill was introduced in February 2013, but it has stalled in the House Judiciary Committee’s Subcommittee on Immigration and Border Security.
An immigration judge in New York recently concluded that a state conviction from possession of a controlled substance isn’t a controlled substance offense for immigration law purposes. Matter of Nunez, slip op. (NY Imm. Court September 20, 2013) (Segal, IJ). The IJ therefore dismissed the removal proceedings.
This case involved an LPR convicted of criminal possession of a controlled substance in the seventh degree, N.Y. Penal Code § 220.03. DHS claimed that this conviction rendered him removable for having been convicted of a controlled substance offense (CSO) under INA § 237(a)(2)(B)(i). The IJ concluded that DHS ultimately failed to meet its burden of proving that the state conviction fits within the INA’s CSO provision by clear and convincing evidence. INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a).
To begin with, the IJ turned to the categorical approach of statutory interpretation and concluded that the state offense is broader than the federal definition used by the INA. In New York, the court explained, “chorionic gonadotropin” is a controlled substance. That substance, however, is not listed in the federal Controlled Substances Act, 21 U.S.C. § 812. Because the INA defines a CSO by reference to the federal definition of controlled substances, the federal list of prohibited substances is controlling. Matter of Nunez, slip op. at 2-3.
The court then went on to explain why the criminal complaint that DHS submitted were insufficient to show that the noncitizen was convicted of a federal CSO. The court explained that in New York a complaint shows only what a person is accused of having done. It cannot serve as a charging document “only if it has been converted into an information” by “supplement[ing it with] a ‘supporting deposition’ and other documents that ‘taken together satisfy the requirements for a valid information’.” Matter of Nunez, slip op. at 4. DHS failed to show that happened in Nuñez’s criminal case. As such, the IJ could not assume that the complaint that DHS submitted was in fact the charging document used to prosecute Nuñez. Matter of Nunez, slip op. at 4. Because the IJ could not consider it the charging document, the IJ could not include it in the record of conviction. Matter of Nunez, slip op. at 4.
Even had the IJ considered the complaint to be a charging document, it still would not have sustained DHS’s allegation for an independent reason. The IJ explained that it is required to determine the factual basis for the conviction. The way to do that when a person was convicted by plea is to examine the plea colloquy transcript, written plea agreement presented to the court, or a “record of comparable findings of fact adopted by the defendant upon entering the plea.” Matter of Nunez, slip op. at 5 (quoting Shepard v. United States, 544 U.S. 13, 20 (2005)). According to the IJ, the “misdemeanor complaint, alone, however, only establishes what substance the Respondent was accussed of possessing, not the substance the Respondent was convicted of possessing.” Matter of Nunez, slip op. at 5. Accordingly, the IJ could not be sure that Nuñez was convicted of possessing heroin; all it could be sure of was that he was accused of possessing heroin, as the complaint indicated. Matter of Nunez, slip op. at 5.
The IJ therefore concluded that DHS failed to meet its burden of proving that Nuñez was removable, and terminated proceedings.
Thanks to attorney Michael Z. Goldman for bringing this decision to my attention.
By Matthew Meyers
In 2009, Thomas Royal was convicted of unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the trial court found that Royal was an armed career criminal, as defined by the Armed Career Criminal Act (“ACCA”). This finding triggered a minimum sentence of fifteen years. On appeal, the Fourth Circuit reversed his sentence. The court held that, in light of the recent Supreme Court decision Descamps v. United States, 133 S. Ct. 2276 (2013), the district court had misapplied the ACCA. Royal also appealed his conviction because the government had not presented sufficient evidence that the ammunition in his possession was non-antique. Antique ammunition falls outside the prohibition in § 922(g)(1). The court affirmed Royal’s conviction in this regard, concluding that the government did not have the burden to disprove that the ammunition was antique.
Besides federal criminal law, United States v. Royal, No. 10-5296 (4th Cir. Oct. 1, 2013), impacts immigration law in the Fourth Circuit. The approach mandated by Descamps for the ACCA — called the categorical approach — applies to the Immigration and Nationality Act (“INA”). See Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Immigration judges must use the categorical approach or its variant the modified categorical approach when they decide whether an alien is inadmissible or deportable.
The ACCA enhances sentences for felons who have three prior “violent felony” or “serious drug offense” convictions. Courts employ one of two approaches to decide whether these definitions apply to a defendant’s prior convictions. In Descamps, the U.S. Supreme Court clarified the process. The primary method is the categorical approach. A court compares the elements of the defendant’s offense to those of the “generic” ACCA crime. If the offense and the generic crime have the same elements or the offense is drawn more narrowly than the generic crime, the offense can serve as a predicate offense under the ACCA. However, if the defendant’s offense is broader than the generic crime, it cannot serve as a predicate. The inquiry is focused on the statutory elements of conviction, rather than the underlying conduct that satisfied those elements. Similarly, an immigration judge uses the categorical approach to determine whether an alien has been convicted of an offense that makes him removable. The INA only specifies the generic crimes for which an alien may be deported; it falls to immigration judges to decide whether a particular state statute fits within the definition of the generic crime.
For example, a “crime of violence,” one kind of violent felony, is any offense for which there is an element involving “the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). A crime of violence (for which the term of imprisonment is at least one year) is also an aggravated felony under the INA. INA § 101(a)(43)(F). An alien is deportable if he commits an aggravated felony. See INA § 237(a)(2)(A)(iii).
Imagine a defendant is convicted of an offense that prohibits (1) intentional (2) use of physical force against a person. Using the categorical approach, a court would determine that the offense is a crime of violence because the required element of the generic crime as defined by 18 U.S.C. § 16(a) – use of physical force – is the same as the element in the statute of conviction. But, if the offense prohibited (1) intentional (2) touching, the crime could not serve as an ACCA predicate. The offense would sweep much broader than the generic crime. Looking at the statute of conviction alone, a defendant convicted of the second imagined offense would not have necessarily committed a crime of violence. A person could be convicted of the second imagined offense without using physical force. The question is whether a person is convicted of an offense that is categorically a crime of violence – hence, the categorical approach.
Let’s throw an additional wrench into the works. If the defendant had been convicted of a crime that prohibits (1) intentional (2a) use of physical force against a person or (2b) touching, a district court (or, in the immigration context, an immigration court) would be in a predicament. The defendant was convicted under either (1)+(2a) or (1)+(2b), but the court could not determine which by looking at the statute alone. If it was the former, it would be a crime of violence. If it was the latter, it would not be because the generic definition provided by 18 U.S.C. § 16(a) does not include the “touching” prohibited by alternative (2b) of our imagined offense. The statute, therefore, is divisible. As the Descamps court notes, a trial court may use the modified categorical approach in this limited circumstance: “it may examine some items in the state-court record, including charging documents, jury instructions, and statements made at guilty plea proceedings, to determine if the defendant was actually found to have committed the elements of the generic [crime].” Even under the modified categorical approach, a court may not delve into the facts of a defendant’s case. The court in Descamps describes the approach as follows:
[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates several different … crimes.
In Royal, the district court had concluded that one of Royal’s previous convictions for second-degree assault constituted a crime of violence under the ACCA. That conviction served as one of the predicates for the sentencing enhancement. But the district court had used the modified categorical approach to come to its conclusion. The Maryland assault statute codifies the common-law version of assault, which has three elements: “(1) the defendant caused offensive physical contact with, or harm to, the victim; (2) the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) the contact was not consented to by the victim or was not legally justified.” Element (1) could be satisfied by proof that the defendant caused either offensive physical contact (not a crime of violence) or harm to (crime of violence) the victim. Thus, a defendant need not use physical force to be convicted of second-degree assault. Under the categorical approach, second-degree assault is not a crime of violence. As the Fourth Circuit panel found, the conviction could not serve as one of the three predicates for a sentencing enhancement.
The district court erred because it had used the modified categorical approach. It had found (1) could be satisfied if the defendant had, in fact, used physical force. In its view, this made the statute divisible. But, as the Fourth Circuit states, “Rather than alternative elements, . . . ‘offensive physical contact’ and ‘physical harm’ are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because ‘[t]he dispute here does not concern any list of alternative elements,’ the modified approach ‘has no role to play.’” The Fourth Circuit vacated Royal’s sentence and remanded the case for resentencing.
You are not alone if you believe the categorical approach seems like a circuitous way of determining whether a defendant has been convicted of a crime of violence. Critics charge that the approach saves defendants from longer sentences based on a legal technicality. In the immigration context, an alien who did, in fact, commit a crime of violence is ineligible for removal if he is convicted under the wrong statute.
But this critique assumes the basic issue. The INA mandates removal for certain kinds of convictions, rather than certain kinds of allegations. An alien who is convicted is found guilty beyond a reasonable doubt of committing the conduct that satisfies the elements of the offense, nothing more. Any unproven allegations are just that – allegations. Because they have not been proven, judges should not be able to rely upon them to deport the alien. Furthermore, the categorical approach promotes uniformity. Every alien convicted under a particular (indivisible) statute will be either deportable or not.
The Fourth Circuit has solidified the Descamps approach as the law of the land. Practitioners in criminal law and immigration law should take note.
Matthew Meyers is a third-year law
student at Wake Forest University School of Law. He writes for Collecting
Cases, a legal blog run by the Wake Forest Law Review. The blog
can be found at http://www.collectingcases.com
Carlos M. García and I are providing a crImmigration law update at the 2013 Conference on Immigration and Nationality Law sponsored by the University of Texas School of Law today. We will be covering some of the important questions that criminal defense attorneys ought to consider when representing a noncitizen defendant before turning to a discussion of the categorical and modified categorical approach to statutory interpretation. A PDF version of our PowerPoint presentation is available here.
Immigration detention in the United States has reached gargantuan proportions. Every day approximately 33,000 people are confined while waiting to learn whether they will be allowed to remain in the country. Over the course of the 2011 fiscal year roughly 429,000 people were confined in an immigration detention facility. To house so many people, the federal government has turned to a vast network of over 200 facilities spread throughout the country. Many of the largest of these facilities are in rural communities many hours from the urban centers that feature robust legal advocacy networks and often thousands of miles away from the cities and towns in the United States that they call home. Though the government stridently denies that this is its goal, the end result is that detained immigrants are isolated in virtual islands; they are removed both from social support networks and from legal services that could be of help during the convoluted process that will determine their fate.
Uncomfortable with the designation “prison” or “jail”, governmental authorities go out of their way to describe immigration detention facilities as anything but. Sometimes they are called “detention centers”; other times “processing centers”. Most recently, the Immigration and Customs Enforcement agency, the division of the U.S. Department of Homeland Security tasked with operating the country’s sprawling immigration detention network, has selected “civil detention center” as its moniker of choice.
The wordsmithing that government officials engage in to keep their facilities from being described as prisons or jails is indicative of immigration detention’s legal characterization. As a formal matter of law, immigration detention is a type of civil confinement. A century’s worth of decisions from the U.S. Supreme Court has reiterated this point. Consequently, much of immigration detention occurs without the legal constraints typically imposed on the government when it deprives a person of liberty. Immigrants can be detained without speaking to an attorney, for example, and detention is regularly imposed without inquiring whether that particular person poses a public safety or flight risk.
It is time to reconsider the premise that immigration detention is not punishment. Several scholars have recently started down this analytical trajectory claiming, in effect, that immigration detention ought to be considered punishment because it looks and feels like punishment. I am sympathetic to such functionalist critiques. In my current research project, however, I develop a more formal approach grounded in Congress’s reasons for authorizing detention as a means of enforcing immigration law.
During a period of approximately fifteen years spanning the early 1980s to the middle of the 1990s, Congress repeatedly enacted legislation that now forms the legal authority for the nation’s immigration detention regime. A close review of these statutory enactments and the legislative milieu in which they arose reveals that Congress viewed immigration detention as a means of targeting criminal activity—specifically, the illicit drug activity then sweeping political halls and popular media as the “war on drugs” blossomed. Indeed, much of the foundational immigration detention legislation was enacted in statutes that were explicitly billed as anti-drug laws. The Anti-Drug Abuse Act of 1986, for example, in the same breath as increasing criminal penalties for drug crimes, granted immigration officials the power to request that state and local police forces detain a person for up to 48 hours for no reason other than that the person was thought to lack permission to be in the United States and was arrested for any violation of a drug offense. Two years later, the Anti-Drug Abuse Act of 1988 similarly targeted criminal drug activity and also introduced the concept of the “aggravated felony” into immigration law and rendered anyone allegedly convicted of an aggravated felony subject to mandatory detention—even an immigration judge lacks authority to release such a person. Both detention authorization provisions play a critical role in the government’s current immigration detention operations, and both constituted one facet of laws generally designed to punish drug offenders.
At the start of the 1990s, then-President George H.W. Bush’s objectives exemplified policymakers’ entangled approach to immigration law and anti-drug initiatives. In a statement accompanying his signing of the Immigration Act of 1990, an act that increased the authority of immigration agencies to engage in anti-drug activity while also increasing the likelihood that a person convicted of drug crime would end up in immigration detention, President Bush explained, “[this act] meets several objectives of my Administration’s war on drugs and violent crime. Specifically, it provides for the expeditious deportation of aliens who, by their violent criminal acts, forfeit their right to remain in this country.” People who, he added, “jeopardize the safety and well-being of every American resident.” And, he went on, it improves the federal government’s “ability to secure the U.S. border—the front lines of the war on drugs….”
Immigration and drugs, it would seem, had come to be viewed as two features of a single danger. Legislators responded by expanding the state’s imprisonment authority. Given this, it is no wonder that immigration detention soon came to share the hallmarks of penal confinement. Most of the facilities that ICE relies on to house its detainees are in fact jails and prisons built to house people being punished for criminal activity; many house immigration and criminal detainees alongside one another. In fact, immigration detention facilities can even utilize some of the harshest features of penal confinement—strip searches and solitary confinement.
The current scope and state of immigration detention in the United States alone reveals that its civil characterization is farcical. Nonetheless, courts remain reluctant to shift course. The legislative history that I address, however, suggests an opening for reexamining the civil confinement premise. In United States v. Salerno, the U.S. Supreme Court instructed that “[t]o determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent.” My hope is that an honest assessment of Congress’s intent in enacting the legislation that currently authorizes immigration detention—an intent to further punish drug offenders as part of the now widely condemned war on drugs—will reveal law’s insistence that immigration detention is civil for the quaint myth that it is.
This essay first appeared on the Border Criminologies blog on October 18, 2013. The blog is run by researchers at the University of Oxford's Centre for Criminology. The essay as it appeared on Border Criminologies can be viewed here.