The US Immigration System in a Nutshell
Tens of thousands of people in US immigration detention are stuck in limbo as they wait for their immigration proceedings to conclude.
These immigrants are detained in facilities under conditions that are often comparable to criminal prisons, but as recent data has shown, less than 25% of these people have criminal records.
Unless there is an urgent change in immigration detention policies, this trend is likely to persist.
I’m Andres Mejer, Immigration Attorney, and an immigrant myself, and in today’s article, we’ll be talking about the US immigration detention system, ICE policies, and detained immigrants with criminal records.
We’ll talk about the trends in immigration detention over the past few years and why there is a need to reform the system.
On the same note of immigrants in limbo, we’ll also touch upon the fate of Dreamers, and why it is necessary for Congress to act on DACA now.
If you’ve started your immigration journey or are thinking of doing so, stay tuned to learn all the facts about US immigration detention as well as DACA, and the changes you can expect in both in the coming time.
Over 75 Percent Of Immigrants In US Detention Are Not Criminals
Let’s start off this article by talking about the United States immigration detention system, which is the largest of its kind in the world, holding tens of thousands of immigrants.
It is civil detention, not criminal, and it’s basically meant to ensure that immigrants considered a “flight-risk” attend the court dates of their U.S. immigration proceedings.
Immigration detention is also designed to hold immigrants who present a “danger to the community” or those who are waiting to hear whether they will be deported from the country.
To put it simply, detention is just a state of suspension for immigrants, in which they’re neither here nor there until their court hearings are complete.
Who Detains Immigrants?
Several U.S. Department of Homeland Security (DHS) agencies, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), are responsible for detaining immigrants who have committed or are suspected of committing civil immigration violations.
While they both hold migrants, CBP focuses on the first 72 hours to process immigrants- while ICE detains them for much longer periods.
Apart CBP or ICE, is the Office of Refugee Resettlement (ORR), which places unaccompanied alien children (UAC) in shelters and facilities across the country. ORR is part of the U.S. Department of Health and Human Services (HHS),.
It’s important to note that unaccompanied alien children in ORR custody are not included in the federal government’s immigration detention statistics.
Immigrant Detention Process
Now that we’ve got that covered, let’s delve deeper into the immigrant detention process.
Immigrants awaiting deportation and those suspected of visa violations, illegal entry, or other civil immigration violations, are held in any one of the 214 public and private detention facilities in the nation’s civil immigration detention system, which are managed and overseen by ICE Enforcement and Removal Operations (ERO).
ICE detains non-US citizens from the interior of the country and those transferred from the border who it believes require supervision. After that, ERO becomes responsible for monitoring and processing detained as well as non-detained immigrant cases until court proceedings are complete.
At the conclusion of the proceedings, ERO puts the judge’s order into effect, be it deportation or release from detention.
Obama administration policies dictated that asylum seekers who passed the first step in seeking asylum by proving a credible fear of persecution could be granted parole and released from detention centers until a judge decided their case.
However, the Trump administration canceled parole for asylum seekers, which led to an increased number of immigrant detainees. This trend has persisted into this year.
The number of immigrants who passed the first step in seeking asylum increased in 2021, but the number of asylum-seeking detainees released from detention did not increase proportionally.
As Heidi Altman, policy director at the National Immigrant Justice Center, puts it “By Ice’s own policy, these are people that shouldn’t be in detention any longer”. And yet, ICE has made no move to release most of these long-term detainees.
And while immigrant detainees are waiting for their cases to be reviewed and processed, they are subjected to less-than-ideal living conditions in the detention centers.
Detention facilities that hold immigrants have been linked to human rights violations. These include poor treatment, including unsafe and unsanitary conditions, assault and abuse, negligent medical care, and excessive use of solitary confinement.
For people who have sought asylum or permanent residence through immigration to the United States, this situation can prove demoralizing.
These are people who have come to the U.S. to flee persecution or improve their lives but are instead met with detention and uncertainty about what will happen next.
Mandatory Immigrant Detention
So, how does ICE determine who needs custodial supervision in the form of immigrant detention and who doesn’t in the first place?
According to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), certain categories of migrants are subject to mandatory immigrant detention.
What this means is that individuals falling under these categories must be detained for the entirety of their immigration proceedings.
The categories include all non-citizens, including lawful permanent residents, who have been convicted of an aggravated felony (such as assault, theft, burglary, or illegal drugs or firearm trafficking) or in some cases crimes of moral turpitude.
Immigrants who are convicted of aggravated felonies are supposed to serve out their sentences in prisons and jails, not immigrant detention centers, just like U.S. citizens.
However, unlike U.S. citizens, once they have been released, they can be detained under mandatory immigrant detention, and even deported afterward.
ERO officers are supposed to consider factors such as the person’s criminal record, immigration history, ties to the community, risk of flight, and whether he or she poses a potential threat to public safety before apprehending immigrants for detention.
Immigrant Detainee Stats
As you’ve probably figured out by now, immigrant detention is arbitrary detention that has a great potential for being abused.
And as recent data released by The Transactional Research Access Clearinghouse, (TRAC) at Syracuse University shows, that’s exactly what is happening. To begin with, according to data released on October 1, 2021, there were a total of 22,129 immigrants detained by ICE.
Out of these, 4,996 had been arrested by ICE while 17,133 had been arrested by the CBP.
This imbalance in numbers shows that most of the immigrants in detention were asylum seekers who arrive at the border and ask for protection, not criminal immigrants already in the country.
In fact, data reveals that 16,740 out of the 22,129 immigrants currently in ICE detention are not criminals at all. That’s a staggering 75.6% of immigrant detainees that do not have a criminal record and are detained only due to civil immigration violations.
And out of the 4,537 ICE detainees that are convicted criminals, most have only minor offenses such as traffic violations, not serious crimes that make them a threat to public safety.
Since June 2018, more than half of all people in ICE detention with criminal records committed nonviolent misdemeanors or violations at most, which are level 3 offenses.
22% of these criminal convictions in immigrant detainees were for improper entry to the United States. Keep in mind that none of these crimes are level 1 offenses (assault, burglary, drug trafficking) that would warrant mandatory immigrant detention.
What is also interesting to note is that the number of immigrant detainees with criminal convictions has steadily declined over the past five or so years, while the number of immigrant detainees without any criminal convictions has increased at the same time.
Now, most immigrants in detention facilities have only civil immigration violations.
When we compare current data of noncriminal detainees, 16,740 immigrants (75.6% of the total), to data from 2015, when the number of immigrant detainees with no criminal convictions was 10,000 (40%), it is glaringly obvious that the Trump administration’s claims of immigrant criminality were unfounded.
This is particularly disheartening when you consider that these claims, along with other Trump-era policies, led to a significant increase in the number of detention facilities in the country, many of them for-profit.
TRAC also found an “institutional unevenness” in the distribution of immigrant detainees without a criminal conviction.
In 2019, most detainees (85%) without a criminal record were held in only one-third of ICE’s 214 detention centers.
In the 2021 fiscal year, ICE detained the greatest number of immigrants in facilities in Texas. As of October 2021, South Texas ICE Processing Center in Pearsall, Texas held the largest number of ICE detainees.
The facility detained an average of 747 immigrants per day. The second-largest number of detainees were held in the Stewart Detention Center in Lumpkin, Georgia, where the daily average was 619.
Immigrant Detention Trends
As you can see, the data from the TRAC paints a bleak picture of immigrant detention. But has it always been like this?
We know that the highest number of ICE detainees was recorded during 2019 when the Trump administration implemented strict immigration policies.
Detentions had hit a peak in 2019 under President Donald Trump at just over 50,000.
But several factors also combined to drive down detention rates in 2020, including the coronavirus pandemic, during which ICE was ordered by courts to reduce its detention rate.
This came considering the gross mishandling of the COVID-19 pandemic inside immigration detention facilities, where the infection rate was five times that of prisons and other incarceration facilities and 20 times that of the population at large.
There was inadequate social distancing and personal protective equipment, and a lack of sanitation and access to care, which is one of the biggest failures of the immigration detention system to date.
Despite it all, the detention rates inside ICE facilities did go down in 2020, and people expected it to stay down once Biden assumed power. However, that’s not what happened.
The number of immigrants and undocumented people detained by ICE has increased dramatically since the start of President Joe Biden’s administration in January 2021.
ICE and TRAC data show a 20-year low in the detention population in February and March of 2021 at around 14,000.
But by August 2021, the number of people detained by ICE nearly doubled to become 27,000.
Recent data from October 1, 2021, puts the number at 22,129, which is lower than before, but certainly not as low as it should be considering President Biden’s promises to reform the immigration system to make it more humane and to end for-profit detention centers.
However, there is a silver lining. Legislation such as the Dignity for Detained Immigrants Act and Freedom for Families Act is waiting on Congressional action, and if passed, could transform the immigration detention system.
Apart from that, new Biden administration guidelines published on September 30, 2021, directed ICE agents to focus on arresting immigrants who pose a significant safety threat.
This directs immigration officers to exercise their discretion to focus on detaining immigrants on a case-by-case basis rather than using categories of specific offenses, which is a step in the right direction.
Ultimately, the administration’s priority should be dismantling the flawed immigration detention system in favor of better, more effective alternatives.
As Biden said during his candidacy for the presidency, “Proven alternatives to detention and non-profit case management programs, which support immigrants as they navigate their legal obligations, are the best way to ensure that they attend all required immigration appointments.”
There is a way forward, and immigrants are counting on President Biden’s administration to protect their interests and create a fair and humane immigration system.
A future in limbo: Why Congress must act on DACA now
As 2022 approaches, it has become abundantly clear that Congress’s involvement is imperative for the secure future of DACA immigrants.
DACA was designed for the children of immigrants who unlawfully reside in the U.S but have spent nearly their entire life as an American.
The Deferred Action for Childhood Arrivals (DACA) is a memo-cum-policy established by former President Barack Obama and then-Secretary of Homeland Security in 2012.
It serves as a temporary deferral action for the deportation of immigrant children who do not have citizenship status. After prolonged anxiety, fear, and uncertainty for such children and their families regarding their future prospects, DACA served as a steppingstone policy.
After 9 years of several executive orders, legal battles, court proceedings and rulings, the absence of Congressional involvement in the matter has left DACA ‘Dreamers’ in limbo.
To draw a timeline from the genesis of this policy to the present day, it is important to touch upon the DREAM Act Bill proposed in 2007.
This legislation represents the footsteps in which DACA should have followed, or perhaps what it should have been all along.
DACA recipients are referred to as Dreamers, a moniker derived from the DREAM Act.
The bill was aimed to be a robust tool that would allow immigrant children a shot at permanent residence and documentation in the U.S. It was proposed in Congress in 2007, where it was unable to pass due to a bipartisan filibuster.
In simple terms, this means that the Democrat and Republican parties could not reach a consensus due to delays or preventative tactics. It was considered again in 2011 and 2013, but it either could not be passed in the Senate or the House.
Ultimately, the DREAM Act could not come to fruition, and shortly after, former President Obama introduced the DACA policy to offer a degree of relief to undocumented immigrant children.
The DACA policy was never intended to be a long-term or final solution to the undocumented status of immigrant children. When then-President Obama introduced the memo, he termed it a ‘temporary stopgap’ that would accommodate the undocumented children in limbo.
The temporary aspect persevered, however, and their permits are renewed every 2 years. The mentally exhausting process of repeated registration after 2 years, along with the fear of deportation greatly affects the quality of life for DACA recipients.
The people currently registered under DACA gain work permits, a social security number, and short-term protection from deportation.
These few ‘privileges’ have opened a plethora of opportunities and securities for immigrant children though. They can experience the scope of American opportunity and freedoms, and progress to great potentials.
Statistics show that the DACA policy has had positive impacts on the mental health as well as poverty rates of undocumented immigrants, with no adverse outcomes on the American economy.
In fact, they represent diversity and inclusive contribution to the economy, a core tenant of American ideals.
After Congress’ failure to pass the DREAM Act, the short-term nature of the DACA policy has been stretched and extended to provide some relief to immigrant children.
When President Trump was elected in 2016, his anti-immigrant political stance, along with Republican hostility towards immigration made DACAs fate unpredictable.
DACA Policy Phase Out
In 2017, the heartbreaking decision was made by the Trump Administration to phase out or discontinue the DACA policy in phases.
The first step was blocking new applicants from accessing the protection offered under DACA. Luckily, his action was stopped by the Supreme Court and lower courts, ruling that the decision to rescind DACA was ‘unlawful’.
When President Biden took office in 2020, he took up a pro-immigrant stance and assured that the DACA policy would remain in effect. This seems to be the case until July 2021.
U.S. District Judge Andrew Hanen in Texas opposed the DACA policy and immediately ordered a partial end to it. His argument was contingent on the idea that the policy was illegal because it did not implement the correct procedural steps towards authorizing a policy.
He is right, and the burden of responsibility falls on Congress’ refusal to settle the fates of hundreds of thousands of DACA immigrants.
Since DACA was implemented without the normal rule making required by the Administrative Procedures Act, President Biden has sought to change by propose new rules and the comment period ends on November 29, 2001. This doesn’t justify Congress’s inaction.
While the Biden administration has appealed the decision in Texas District Courts, the aftermath has already affected many.
The court order has stopped any new applications for DACA, while the future previously registered individuals is yet to be decided. Judge Hanen’s decision makes clear that Congressional involvement is necessary, if for no other reason than to avoid the never-ending lawsuits on DACA.
It is likely that the Supreme Court will have to intervene in this case as Congress continues to remain absent in the matter.
The lives and prospects of an estimated 640,000 undocumented immigrants registered under DACA are on the line, and Congress can no longer evade its responsibility to its people.
70% of voters in the United States have expressed support for allowing undocumented immigrants a procedure to gain permanent citizenship status.
The mandate is the responsibility of the Biden administration and Congress, to deliver on their constitutional responsibility, yet the latter continues to disappoint.
Just passing a bill in favor of the previously established parameters of DACA is no longer enough either. DACA was never intended to be a long-term action for undocumented immigrants, and a bill that guarantees a journey to permanent resident status is required.
For DACA recipients, America is their home and they have spent most of their lives not just living, but also contributing to the United States’ progression and growth.
They deserve a status that is appreciative and one which secures their present and future. All eyes are on Congress now.
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