Long term detention is the norm.

Sunday, August 16th, 2009
By: Jonathan MontagJ.D.

Many times I have made reference to Julie Andrews to illustrate a problem with immigration detention. The reference is actually to Maria von Trapp, her character in “The Sound of Music.” You may recall that in addition to spinning dervishly on a mountaintop meadow and singing about whiskers on kittens, she and the family she was the governess for, and then stepmom for, fled Austria to Switzerland. The story ends with the family hiking safely into Switzerland. This is where the reference kicks in. If the family was safely hiking to a border checkpoint to the enter the United States without the requisite visas, presumably seeking asylum, they would have been arrested to await a removal proceeding where they would ask for asylum. ICE, Immigration and Customs Enforcement, has a policy of not releasing such arriving aliens despite how compelling the asylum case and despite whether the person will ever be able to be deported back to their countries. For example, Iraqi Christians and Somalis are not being deported to their countries, but thy nonetheless must sit in detention despite the fact that, win or lose in the asylum case, they will end up in the United States.

Similarly, lawful permanent residents are subject to detention if they are being deported for crimes. For many crimes, the detention is mandatory for the duration of the time their hearing takes. At first blush, it is perhaps undisturbing that “criminal aliens” are detained, until two facts are considered. First, even some extremely minor crimes can subject one to mandatory detention. For example, a simple possession conviction for drugs, even a ten year old one, can result in mandatory detention. Admittedly, attorneys become immunized to the criminal conduct of the people they represent, but even a person who does not knowingly routinely come into conduct with people with criminal convictions would be surprised if he or she found out how many people he or she knows have some dark secret in their past – a couple of shopliftings in their 20’s, a drug arrest, a domestic violence arrest after a loud fight. If everyone who had some past indiscretion was locked up, the streets and roads would be a lot less congested.

Well, what is wrong with some brief detention anyway? So an alien has to spend a month or two in detention to seek forgiveness for some crime in the remote past or to receive asylum from an immigration judge. What is so bad about that? At least the government knows where the person is so he or she does not run away if he or she loses her case. Certainly people lose their cases and could run away. Isn’t this a perfect solution to the absconding problem?

There are a couple of problems with this solution. First, while a short period of detention might not be so troubling, when this detention lasts months and months, it starts becoming quite inhumane. Remember, asylum seekers and people with past criminal convictions are not being detained because of a criminal prosecution. Immigration proceedings are not criminal proceedings to find guilt and to punish, they are civil proceedings – like if you sue the plumber who installed your bathtub wrong. How long should someone sit detained in a civil proceeding without any opportunity for release? Should there not be some upper limit. The Supreme Court set an upper limit in a related context – the detention of aliens who have deportation orders but no country will take them. The Supreme Court set an upper limit of six months in Zadvydas v. Davis. This did not mean that a person had to be released after six months, but that a showing that the person could be deported must be made and if there was no chance, the person should be released with adequate controls to make sure they are not a danger to the community or about to run off.

The problem with the detention of aliens in removal proceedings is that they are being held longer than six months despite their best efforts to get their cases completed sooner. In other words, their cases are not taking longer than six months because of their own actions delaying the court dates, but because the courts are backed up and cannot hear the cases for more than six months. Imagine if Maria von Trapp got to Switzerland and sat in a detention center for seven months? Imagine if a loved one or friend you know who supports his or her family was detained for eight months because of a drug arrest ten years ago while in college for which he was unambiguously eligible and deserving of forgiveness. Imagine what would happen to your family, your job, and your home if you were placed in detention for seven months/ When the Supreme Court allowed for mandatory detention in a case, Demore v. Kim, it was based on government statistics that the period of time in custody was brief. When I have read the statistics the government provided and the Supreme Court cited in its decision in Demore v. Kim to immigration practitioners at conferences, the audiences break out in laughter [“85% of the cases in which aliens are detained pursuant to §1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter”]. In my experience these statistics were never true and are most certainly not true now. The average period for case completion is more like seven months and appeals stretch on at least six months after that. As Mark Twain said, “There are three kinds of lies: lies, damned lies, and statistics.”

Another problem with this prolonged detention is that the detention takes place in real prisons. It is not like Ms. Von Trapp is placed in some bucolic mountaintop facility while waiting for her hearing. Some pleasant camp-like setting where the indignity of confinement is mitigatedby a pleasant environment. She is locked down, given horrible food, substandard medical care, and subjected to all the indignities of prison life – including in some detention centers being intermingled with real criminals in prison for their crimes. The Obama administration recently announced plans to overhaul this system, but nothing will change overnight.

Finally, the detention of so many people causes overcrowding issues. Aliens are being transported around the country, at no small expense, to find available detention space. Several times recently San Diego families have contacted me to help them deal with a detained relative and it turns out the relative has been shipped to Texas. Think how difficult it must be to find a competent immigration attorney in a city you have never been to.

I am not advocating that all detainees be released. However, ICE and the immigration courts have vast experience in determining who is a danger to the community or a flight risk. Officers know at the outset that some aliens will never be removed and so holding them in detention is absurd and costly. If humanitarian concern is not a reason to think allowing for the release of aliens, after a determination of flight risk and danger, is warranted, the fact that it costs taxpayers more than $100 a day to detain each alien should make releasing aliens who are not a danger or a flight risk or who will never be removed an attractive proposition. Consider that a detainee held for seven months costs the taxpayer $21,000, and add that to the calculation of whether Julie Andrews should sit in prison. 



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