Why Won’t DHS Create Real Immigration Detention Standards?

America's Voice Blog

Posted 07/30/09 at 06:21pm

What's that line about things getting worse before they get better? We can only hope (oh, wait, someone already owns that one...) or should I say, make the case loudly, that this be the case over at DHS.

Nina Bernstein of the New York Times reports this week that the Department of Homeland Security, led by Janet Napolitano, has declined to make the growing detention industry in the United States legally accountable. The final decision came in on Tuesday, in time to meet a court-ordered deadline:

The Obama administration has refused to make legally enforceable rules for immigration detention, rejecting a federal court petition by former detainees and their advocates and embracing a Bush-era inspection system that relies in part on private contractors.

The decision, contained in a six-page letter received by the plaintiffs this week, disappointed and angered immigration advocacy organizations around the country. They pointed to a stream of newly available documents that underscore the government's failure to enforce minimum standards it set in 2000, including those concerning detainees' access to basic health care, telephones and lawyers, even as the number of people detained has soared to more than 400,000 a year.

More bad news for DHS, AP reporter Amy Taxin describes a new report by the National Immigration Law Center as "violating standards." While the NILC report centers on investigations that took place under the recent Bush administration detention system, the study's authors come to the conclusion that legally enforceable detention standards are a must and that not enough has changed:

The authors recommended that detention standards should be legally binding. They urged the government to make reviews public and make it easier for relatives and attorneys to track detainees' whereabouts.

They also encouraged the government to promote alternatives to detention, such as the use of electronic ankle bracelets.

ICE created new performance-based detention standards in 2008. It also hired outside companies to carry out inspections.

Tumlin said detainees continue to report the same problems today as those outlined in the inspection reports.

With so much at stake, it's hard to understand why the folks over at DHS would not want to distance their agency from Bush-era immigration detention controversies by implementing minimum standards that are legally enforceable.

Here's the good news today, as reported by Gregory Chen of Lutheran Immigration and Refugee Services (via Immigration Impact):

Senators Robert Menendez (D-NJ), Kirsten Gillibrand (D-MA), and Edward Kennedy (D-MA) took action today to reform the Department of Homeland Security’s ever-growing immigration detention system. The need for reform could not be any more clear: several recent reports have documented both the poor conditions in detention facilities and violations of detainees’ due process rights. A delegation from the Inter-American Commission on Human Rights called conditions “unacceptable” after visiting facilities in Florida and Texas. The National Immigration Law Center, the ACLU of Southern California, and Holland & Knight law firm published a system-wide report on the federal government’s compliance with its own minimum standards, finding “fundamental violations of basic human rights and notions of dignity” and calling for a halt to any further expansion of the current detention system.

Senator Menendez and Gillibrand’s Strong STANDARDS Act bill would require the Secretary to issue rules regarding detention conditions in 15 different areas, including medical care, access to telephones, the treatment of vulnerable populations, and the use of force. Oversight and accountability would be enhanced through requirements that the Secretary issue rules regarding enforcement, report all detainee deaths, and appoint a Detention Commission responsible for investigations and reporting on compliance.

Great to hear that Senator Menendez, Kennedy, and Gillibrand are leading the charge in the Senate to get detention reform done. In a Huffington Post piece entitled Immigration Reform Moves to Front Burner, Roberto Lovato predicted last February:

Guantanamo Bay isn't the only prison crisis that President Barack Obama will have to deal with. There's another crisis growing - in the many immigration detention centers carpeting the interior of the country.

Erin Rosa, of Gabacha.com, implies that great sums of money are being made at the expense of basic justice:

The number of undocumented immigrants the U.S. federal government jails has grown by at least 65 percent in the last six years according to ICE's own statistics, and private prison firms like Corrections Corporation of America and the GEO Group are making a killing off of it. First quarter income for the GEO Group increased by $15.9 million this year, up roughly two million from last year. Corrections Corporation of America's first quarter earnings in 2009 also increased 6.5 percent to $404.2 million.

Part of the problem with for-profit immigration detention is that there is no profit incentive for businesses to release immigrants from their lockups. In fact, because companies are often paid daily fees per inmate, it's way more lucrative to detain more people.

Indeed, our nation's rapidly-expanding detention system bears fixing immediately, and this new Menendez/Gillibrand/Kennedy detention reform legislation is a critical step in the right direction.

Abuses within our nation's private detention industry are another carry-over of misguided Bush-era immigration policy that has advocates from coast to coast shouting, "Enough!"

Last word goes to the National Immigration Forum:

We praise Senators Menendez, Gillibrand and Kennedy along with Rep. Lucille Roybal-Allard, who is fighting for similar legislation in the House. Their leadership is critical to winning reforms that protect the fundamental rights of detainees and ensure that American values of fairness, transparency and due process are upheld.

However, as long as we have a deficient immigration system the detention system will continue to be overburdened. Unless we pass comprehensive immigration reform, we will continue to have a system divorced from reality, which does not provide sufficient legal channels for immigrants to use or mechanisms for immigrants already in the country to get legalized. It is important and urgent that Congress implements workable solutions that will place our immigration system back on a legal footing and restore basic fairness and humanity to our cruel, costly, and irrational detention system.