Saluja Thangaraja was tortured, beaten and held captive in Sri Lanka, her homeland. She was lucky and managed to escape before she was killed. When she arrived in the United States – the land of freedom she was seeking turned out to be the exact opposite: she was imprisoned in a federal detention center near San Diego for over four and a half years before a federal judge ordered her release.
She is not alone. Immigration detention is in overdrive. In the past two decades federal immigration detention has grown dramatically with over 400,000 people locked up each year, about five times the number detained twenty years ago, costing American taxpayers $2 billion annually. These are not people serving criminal jail terms. Instead they are people facing possible deportation—a civil process that is not supposed to be punitive. Conditions in institutional detention facilities are marked by severe deficiencies—at least 141 people died while in detention in the last decade.
Many are detained unnecessarily without any opportunity to appear before a judge. Thousands are held for months despite the fact that they have families and jobs and pose no threat to public safety. Locking up individuals facing civil immigration charges should be a last resort, used only when other means of supervision are not feasible. There are effective alternatives to jail detention, such as bond, supervised release, or electronic monitoring, that the Department of Homeland Security (DHS) should be using. But DHS overwhelmingly prefers detention over smarter alternatives.
As a nation founded on liberty, due process and fairness, we should be striving to minimize detention except where justified and absolutely necessary.
Now a chorus of legislators are calling for immediate reform, including Representative Adam Smith (D-WA) who introduced a bill this month to improve detention conditions. He joins Senator Richard Blumenthal (D-CT) and more than sixty House members who are calling upon DHS to reduce the use of detention or provide impartial custody hearings before judges.
Recently, AILA joined calls for reform by filing two briefs requesting that Attorney General Holder make good on his promise of fairness and sensible immigration enforcement by adopting a comprehensive, rational immigration detention policy.
He should do two things. First, establish a national policy to provide hearings before immigration judges for everyone detained six months or more. Overwhelmingly courts around the nation are ruling that no one can be detained for a prolonged period without a hearing before an immigration judge. Our Constitution requires such hearings—often called bond hearings—to protect a detainee’s rights. The 3rd, 6th, and 9th Circuit U.S. Courts of Appeals and a federal district court in Massachusetts agree. But despite those decisions, the Department of Justice has yet to implement a national rule that would provide bond hearings to people who have been detained over 6 months—the presumptive period that the Supreme Court has deemed is too long. With courts already deciding in favor of such a rule, there is no reason to wait.
Such a rule would ensure that Warren Joseph, an immigrant from Trinidad and Tobago, who honorably served in combat roles in U.S. Army, would not have spent more than 3 years in detention because he illegally purchased a handgun – a minor offense for which he served no jail time. During the years he was detained, he never got a hearing on whether his detention was justified. We need a national rule for bond hearings because without one, our system deprives thousands of their freedom without any chance to plead their case. This is inexcusable and unconstitutional.
A second problem is a federal policy that requires immigration officers to use jail detention on certain individuals even though alternatives to detention would be just as effective and cheaper. Many of these individuals do not pose any threat to public safety and would be ideal candidates for alternatives to detention with families, jobs, and strong ties in their communities. Again, the Attorney General has the authority to clarify what the law requires and, in so doing, greatly improve national policy to ensure public safety, reunite families, and save taxpayers money in the bargain.
As a member of AILA’s Amicus Committee, filing these briefs are part and parcel of our efforts to bring common sense to our broken immigration system. The examples I use are just two of the names and stories that make up the true human cost of the status quo. Mr. Holder needs to seize this opportunity, take action against injustice and stand up for our Constitution.
Written by Stephen Manning, Member, AILA Amicus Committee