Guest Commentary: Biden Can End the Mass Detention of Immigrants

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Our message to President-elect Biden is clear: It is time to put an end to the ICE detention machine.

By Madhuri Grewal

The administration of President-elect Joe Biden must do more than reverse the cruel immigration policies of the Trump administration. While the Trump administration’s policies have been particularly egregious, they are just the latest manifestation of a system that is fundamentally flawed. It is not enough to just turn back the clock on the past four years.

It is time to put an end to the Immigration and Customs Enforcement detention machine.

Over the past several decades, immigration detention — in essence, incarcerating those awaiting a determination of their immigration status or potential deportation — has become our nation’s newest system of mass incarceration for Black and Brown people. Rather than perpetuating this costly and cruel system, the Biden administration can immediately take action to curtail it — without any new laws from Congress, with the goal of phasing out mass detention.

Specifically, the new administration should immediately close all family detention centers. It should terminate existing contracts with private prisons and local and state jails by the end of the year, beginning with those that have an egregious history of abuse. It should also refrain from entering into new ones.

During the first 100 days, the new administration’s budget proposal can signal changed priorities, including an immediate reduction of at least 75 percent in the detention budget of ICE.

The Biden administration should eliminate bond for those otherwise eligible for release, and operate under a presumption of liberty, not detention. Under current law, ICE could immediately release tens of thousands of people from custody, but it routinely ignores its own internal standards to deny liberty to immigrants. The administration should simultaneously work with Congress to eliminate any circumstances in which detention is mandatory.

Incarceration of immigrants used to be the exception, not the rule. Under the law, we aren’t supposed to incarcerate people to punish them for lacking immigration status — that is a civil matter — or to deter others from coming to the United States. But that’s precisely what we now do, and on a massive scale. Decades of racist “tough on crime” policies, new detention policies seeking to punish and discourage people from coming to the United States, and the expansion of the detention infrastructure in the aftermath of 9/11 have pushed us in this unwise, expensive and inhumane direction.

The numbers are staggering. In just over six decades, the United States has completely upended its 1954 goal of ending the use of detention in “all but a few cases.” The detention of immigrants on any given day has gone from just under 6,800 in 1994, to nearly 34,000 in 2013, to an all-time high of more than 52,000 in 2019. In short, in just 25 years, the average daily population of immigrant detainees has increased more than sevenfold. We have all but normalized a system that abuses and traumatizes immigrants as a matter of practice.

Although other agencies detain immigrants, ICE is responsible for the vast majority of detentions and holds people the longest — for months or even years. The cruelty of its vast network — more than 200 sites nationwide — is by design: Detain people in the middle of nowhere, without lawyers and with no support network nearby. Pressure the people who are still fighting their cases into giving up their legal claims. Deport people covertly, and repeat.

ICE detention is a critical piece of our country’s mass deportation conveyor belt, propping up a system that tolerates racist practices, harms families and children, and denies basic due process and human rights to hundreds of thousands of people each year — costing taxpayers more than $3 billion this past fiscal year alone. Detained individuals have suffered severe pain and medical neglect culminating in sometimes months-long hunger strikesdeathsamputations and suicides. Recently, numerous women bravely came forward to report invasive and unnecessary surgeries, including hysterectomies, while in ICE detention.

Those caught up in this system include pregnant women and families — some with babies and toddlers. Many are longtime lawful residents with deep ties to our community; some are ripped from their children’s arms by armed ICE officers or arrested on church grounds. ICE has even detained U.S. citizens.

This year, covid-19 has laid bare the ultimate costs of immigration detention. ICE has refused to provide even basics like masks or soap, denied testing to keep infection numbers artificially low, recklessly transferred people between facilities with coronavirus outbreaks, and failed to provide urgent medical care. ICE’s neglect during a pandemic is killing people and spreading the virus.

In part because of litigation and advocacy, ICE detention levels declined significantly this year, demonstrating that people are needlessly detained. These lower levels of detention, coupled with a presumption of release, enable a new administration to make urgently needed changes.

These recommendations are the minimum of what the Biden administration must do. But implementing them would move us toward a reimagined system — without the systemic trauma and cruelty stemming from immigrant detention — that embodies our nation’s values of fairness, justice and human rights.

Madhuri Grewal is the federal immigration policy counsel at the ACLU.


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46 Comments

  1. Ron Oertel

    No mention of an alternative, other than to eliminate restrictions.

    Given disparities between countries, this sounds like a recipe for systems to become overwhelmed.

    I’m not aware of any country that allows unrestricted immigration.

      1. Alan Miller

        lenient immigration promises

        The terminology has been so smeared the last several years.  When one uses the term “immigration”, I often don’t know if they mean changing the laws to be more lenient, or simply not enforcing existing laws.

        With Mexico exploding with Covid-19, and border towns among the highest rates in the nation, seems a bad time to consider relaxing either.

        1. Tia Will

          Alan

          It is not just Mexico that is exploding with COVID. According to the NYT tracker, Roseville Kaiser has one bed available and 91 COVID patients, UCD is at 97 % of capacity, Kaiser South Sac is at 94% capacity with two beds available, and Morse Kaiser is at 90% with 3 beds available. Sutter Davis is at 86% capacity with one bed available. Woodland Memorial is at 84% capacity with two beds available.

          My point is not that this is a good time for an immigration surge from a similarly affected country, but rather that I think same-day testing could be used at the border to screen and let those testing negative follow the steps I outlined above as less expensive and less dangerous than what we are doing now.

           

      2. Tia Will

        Keith

        Of course, there are rumors. There were rumors of huge caravans that seemed to wax and wane depending on the expediency for Trump’s political advantage. There were also rumors that Obama was going to confiscate everyone’s guns. Did that happen? Of course not, but policy by rumor is not optimal in my opinion.

    1. Tia Will

      Ron

      You are presenting a false dichotomy. Keep everyone in detention or let everyone go free. But there are a range of intermediate steps that could be taken. First, let’s go back to the original mission of ICE. It was to stop and detain dangerous criminals, not those in violation of civic code. It has evolved over the decades into a source of people for detention in incarceration for-profit facilities.

      So what could we do differently:

      1. Every potential immigrant on arrival gets a medical evaluation. Those in need of care receive it. Those who do not go to step two.

      2. Evaluation for support system: Those who have sponsors are released to their care with notification of their first court date – most arrive as scheduled if informed directly. If no sponsor, assessment of self-sufficiency and/or ability to find sponsoring individual or agency.

      3. Provide temporary housing as needed for those who do not have their own funds and a sponsor cannot be found. With what funding? I would suggest that the $750/day we pay private prison facilities would be a good start as would be any leftover funds from “the wall” would a good start & be sufficient for housing and a stipend sufficient to keep them afloat until they can find appropriate work.

      Again, primary prevention is always better than dealing with the issue retrospectively through punitive means.

       

      1. Ron Oertel

        I was simply noting the lack of any solution in the article, itself.

        It is illegal to come into the country in the manner described (implied) in this article.  Are you claiming that no federal agency has authority to enforce that law? Or, are you claiming that the law should be repealed, thereby allowing unrestricted immigration into the country?

        The rest of your suggestions seem to suggest an implied acceptance regarding unrestricted immigration into the country – the very thing I noted. But your comments go even further, and suggest that this should (also) be subsidized. I don’t understand this type of thinking, and I suspect that it is both unsupportable and potentially disasterous.

        1. David Greenwald

          A solution to what?

          Their proposed course of action is clearly spelled out: “The Biden administration should eliminate bond for those otherwise eligible for release, and operate under a presumption of liberty, not detention. Under current law, ICE could immediately release tens of thousands of people from custody, but it routinely ignores its own internal standards to deny liberty to immigrants. The administration should simultaneously work with Congress to eliminate any circumstances in which detention is mandatory.”

        2. Ron Oertel

          A solution regarding uncontrolled immigration into the U.S.  (Thought that was pretty obvious.)

          If you not only allow it, but enable it – the result seems pretty obvious (as long as there’s disparities between countries).

          Sure hope that I’m not sorry for supporting Biden, though as they say – your (single) vote doesn’t matter, anyway. (Especially in California.)

          “Deny liberty to immigrants”. Interesting concept, considering that they’re not U.S. citizens (and are here illegally). The U.S. is responsible for ensuring “liberty” around the world, now?

          1. David Greenwald

            You understand this is an issue of how to handle asylum seekers? It’s also an issue of handling long-time legal residents.

        3. Ron Oertel

          The article made no mention of “asylum seekers”.

          Regardless, can you envision scenarios (and existing realities) regarding how that claim can be misused?  (By those seeking to immigrate into the U.S. for other reasons?)

           

        4. Tia Will

          Ron

          Valid questions. I am suggesting neither. Of course our government has the ability to enforce laws. However, we have not always enforced them in such an inhumane manner. When I was working at the border, we did use a process very much as I outlined. So their is precedent for a humane & less expensive solution.

          There is nothing I said that implies advocacy for unlimited immigration. I outlined a process that would provide subsistence living and an opportunity to provide for oneself as soon as able. You seem willing to subsidize the much more expensive process we have now ( $750/day/person) for the sole benefit of the private prisons. So we still are subsidizing, at much higher cost, and with no ability for any individual to work or establish self sufficiency which is all most of them want.

        5. Ron Oertel

          Regarding asylum, I would think that there are quite a few places around the world whose residents would qualify.  It seems that the only ones considered are those in neighboring countries.

          I can’t imagine what would occur, if the U.S. actually accepted all of those who would legitimately qualify for asylum.

           

        6. Ron Oertel

          and with no ability for any individual to work or establish self sufficiency which is all most of them want.

          What is your long-term vision, regarding that?  If it’s ultimately to allow anyone to stay in the country indefinitely (and/or become U.S. citizens), then that is indeed “uncontrolled immigration” – whose numbers are solely determined by those who wish to come to the U.S.

          I’d call that a disaster-in-waiting, as long as there are disparities between countries.

          Seems to me that the people advocating this type of thing have put very little thought into it, and are driven by ideology – rather than practicality and reality.

        7. Eric Gelber

          “Deny liberty to immigrants”. Interesting concept, considering that they’re not U.S. citizens (and are here illegally).

          Even people here illegally retain basic human rights, including the right to liberty. Indefinite detention violates this constitutionally protected interest and the government’s justification for immigration detention must pass exacting constitutional scrutiny. 

           

        8. Eric Gelber

          Sorry. No time nor inclination to draft a legal brief for you. But see, e.g.,  Foucha v. Louisiana504 U.S. 71, 80 (1992):

          “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment Due Process] Clause protects.”

        9. Ron Oertel

          It looks like that citation is related to someone committed to a psychiatric hospital.

          I suspect that if we continue this conversation, it would get bogged-down into legal discussions, which is pretty difficult to “resolve” on a blog. Like most issues on here.

          But bottom line – are you claiming that the federal government has no right to detain those who enter the country illegally, because doing so would impede their “liberty”?  Or, are you stating that there are stipulations regarding detention (in other words, agencies must follow the law when doing so)?

          Because if it’s the latter, I suspect that we have no “disagreement”.

          Also, is it illegal to deport someone, based upon their status of being in the U.S. illegally? (Again, not looking for lengthy legal discussion.)

          Regardless of the complexities of law, I suspect that most of the disagreements regarding immigration revolves around “ideology”, more than anything else. It is a highly emotional (and sometimes personal issue), for some.

        10. Eric Gelber

          are you claiming that the federal government has no right to detain those who enter the country illegally?  Or, are you stating that there are stipulations regarding that (in other words, they must follow the law when doing so)?

          The latter. Read the second sentence of my original post.

          Also, is it illegal to deport someone, based upon their status of being in the U.S. illegally?

          Not if the individual is afforded adequate due process.

        11. Ron Oertel

          Sounds a lot simpler (but probably a lot less-effective) to just build a wall.  😉

          Then again, another way to control it is to remove incentives. (Maybe we’ll save that for another article.)

  2. Ron Oertel

    I was watching a Youtube video the other day, produced by someone who creates travel videos.  That person noted that Canada won’t even allow U.S. citizens to visit that country, if they’ve been convicted of a crime – including DUI’s, for example.

    Thought I’d look it up, and found this:

    https://ccresourcecenter.org/2015/06/18/traveling-to-canada-with-a-criminal-record/

    I believe that there are quite a few countries (including some in the so-called “third world”) that have much more restrictive requirements for entry/residency, than the U.S. has.

    Some seem to believe that the U.S. should continue to be “different” – regardless of the cost or impact. (Again, I don’t understand this type of assumption.) I believe it is ingrained in our culture (and on the Statue of Liberty, for example). Might be time to re-think that.

    1. Tia Will

      Ron

      I strongly object to “rethinking’ one of the founding and aspirational principles of our country because “other countries do it differently’ or because some of us happen to feel it is a threat to them in some way.

      1. Ron Oertel

        I would agree, regarding the reasons you put forth.

        But, those aren’t the underlying reasons that I put forth.  The underlying reasons have to do with overwhelming systems (and ultimately, an uncontrolled situation). Essentially, the same reasons that other countries don’t allow it, either.

        Again, seems to me that there is a cultural ideology at play here, which is interfering with practicality and reality. I don’t expect this to change, on the part of those who believe in it.

  3. Tia Will

    Ron

    If it’s ultimately to allow anyone to stay in the country indefinitely (and/or become U.S. citizens), then that is indeed “uncontrolled immigration” 

    You and I would probably get much further in conversations if neither of us made up what the other was thinking. I made it clear in the steps I outlined that there would be a vetting process. Once you vet, you are not embracing “uncontrolled immigration”. You are giving thoughtful consideration to who is likely to make a positive contribution to our society and who is not. This is a separate consideration in my mind from the issue of asylum seekers who, if they make a reasonable claim of potential harm, should always be admitted in my opinion.

    1. Ron Oertel

      You are giving thoughtful consideration to who is likely to make a positive contribution to our society and who is not. 

      Well, that sounds like a challenging set of criteria to establish.

       

          1. David Greenwald

            It’s not because it allows you to see how other factors are weighed in determining that course of action is taken.

        1. Ron Oertel

          Just to be clear, are you claiming that (at hearings), they disregard whether or not one arrives illegally, and can base their decision regarding some criteria as to whether or not one can “make a positive contribution to our society”?

          And if they’re allowed to stay, then they do so in some kind of legal limbo (given that they still wouldn’t be citizens)?

          Seems to me that (depending upon what criteria are used), anyone could be deemed able to “make a positive contribution to society”. Which (again) would create an incentive to break the law and encourage uncontrolled immigration, as long as disparities between countries exist.

          1. David Greenwald

            Just to be clear – I think it would benefit you to learn more about this. There are a lot more gray areas in the law here than people realize. The law is pretty complicated which is why you have hearings and proceedings to make determinations. That’s why I asked the question I did – I think if you watched immigration proceedings, you would answer your questions better than you asking questions in argumentative form from a position of lack of overall understanding of how the system works.

        2. Ron Oertel

          In skimming through that, it appears to be an asylum claim case.  And not a “what can they contribute to our society” case for someone arriving illegally (in reference to my comment to Tia regarding criteria – that you responded to).

          One thing that I find kind of interesting is that these asylum cases are probably/primarily limited to those who can “walk into” the U.S., vs. originating from locations around the world which might be far more dangerous.  Somalia comes to mind.

          So perhaps the asylum request system itself is discriminatory, in that manner. Based upon convenience/access, more than need. (Maybe we’ll avoid discussing whether or not that manifests into “racism”, as well – as implied in the article in a different way.) 😉

  4. Ron Oertel

    This entire issue reminds me of the “defund the police” movement, followed-by those who subsequently claim that this isn’t really what was “meant”.  😉

    In other words, I believe that some people are generally supportive of asylum claims, as a back-door mechanism around immigration restrictions.

  5. Ron Glick

    One thing Biden should do differently than Trump would be to stop trying to punish people who come here as a deterrent to others. This shift in policy would go a long way to addressing a long list of reprehensible Trump era policies.

    1. Ron Oertel

      I agree.

      Similarly, if there’s a “reward” (benefit) in doing so (inadvertently, or purposefully) they will continue to do so.  Human nature.

      There’s also a lot of people in other countries (who can’t “walk” into the U.S., illegally) who would benefit from being U.S. citizens, but are prevented by oceans from doing so. Those folks are forced to do so “legally” – assuming that they even have a way to do so, or the fortitude to go through that process.

      Frankly, Americans might benefit from relocating to some other countries, as well. And are similarly prevented from doing so.

  6. Ron Glick

    “Those folks are forced to do so “legally” – assuming that they even have a way to do so, or the fortitude to go through that process.”
    This was the big lie of the Trumpets, that they only were against illegal immigration. It was a sort of Right Wing virtue signaling about being sympathetic towards immigrants. In reality the Trump administration did everything it could to restrict legal immigration too.

     

    1. Bill Marshall

      Except for Nordic, non-Muslim, non-Hispanic, folk…

      Rules were/are open to WASP’s or ‘close enough’… not sure how they felt about Irish-Catholics…

      In spite of the fact that POTUS is [deleted]

  7. Ron Oertel

    Except for Nordic, non-Muslim, non-Hispanic, folk…

    There are a LOT of non-Nordic, non-Muslim, non-Hispanic folks who cannot simply “walk into the U.S.” (and are indeed forced to go through legal processes, if they want to immigrate into the U.S.).

     In reality the Trump administration did everything it could to restrict legal immigration too.

    That’s nothing new under Trump, and it’s necessary regardless.

    Where are these people (legal, or not) going to live, if there’s no restrictions to permanent entry?  Regardless of skin color?

    Maybe when there’s “one government” (ala, “The United Federation of Planets” as referenced in Star Trek) things will be different. But until then . . .

      1. Ron Oertel

        I suppose that ultimately, all that anyone wants to do is to “Live Long and Prosper”, the underlying reason that anyone would try to immigrate (or emigrate).

        Nothing wrong with that underlying goal, in-and-of itself.

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