News reports indicate that under a policy started under the George W. Bush administration and expanded greatly under the current Obama administration, Immigration and Customs Enforcement officers interview aliens in jails. If they are deportable based on their criminal records or if they are undcoumented, ICE takes them into their own custody for deportation.
So far, according to a November 13, 2009, New York Times story, 110,000 such aliens have been identified. The program is lauded as a low-cost way to find and remove “criminal aliens” and undocumented aliens. A criticism of such programs is the chilling effect it can have on reporting crimes. If your spouse is being loud and threatening, for example, and you want the police to come to impose a cooling off period, and as a result your spouse is deported, this would result in a chilling effect on contacting law enforcement for help. An analogy would be if health providers had to report the immigration status of patients to ICE, people would be reluctant to seek treatment for communicable disease out of fear of arrest and deportation, thus endangering society in general.
I am personally not entirely persuaded by this concern. Accepting that being present in the United States without valid documents is a violation of the law and because the immigration laws mandate placing aliens with certain convictions into removal proceedings, it is hard to explain why law enforcement officials should ignore these laws when they encounter an alien in jail. Quite often an alien who is currently in removal proceedings for a conviction that occurred years and years ago will ask me why removal proceedings were not initiated when he or she first committed the crime or at other times when he or she was in jail.
What I find disturbing about the screening program is how it interfaces with the mandatory detention aspects of the law. Here is a typical scenario. An permanent resident who entered the United States as a child suffered a drug possession conviction in 1985, when he was, say, 19 years old. He is now 43 years old, has a good job, a U.S. citizen wife, U.S. citizen children, a home, and is active in his church. His “youthful indiscretion” is long behind him. Then, because of some aggressive driving he is arrested by the police and accused of drunk driving. He is brought to jail and booked in. The next day he goes to court and the charges are dismissed. ICE, however, screens him, discovers the 1985 conviction, arrests him, and places him in removal proceedings. Because of mandatory detention laws, he cannot be released from detention while his removal proceedings are pending. ICE asserts it has no discretion not to detain the alien.
The way these proceedings work, it could be well more than six months before he has his final hearing where he is allowed to ask for forgiveness for his 1985 crime and allowed out of detention. The cost of detaining this person for six months or more is astronomical. The impact on the man with the 24 year old conviction is extreme – no one to pay the mortgage or support the family, loss of a job, and great trauma to the entire family. Plus, he and his family must incur the expense of hiring representation in a removal hearing.
The impact on immigration enforcement is also acute. With jail space dedicated to a man with a 24 year old drug conviction and obviously a threat to no one and an abvious candidate for relief from deportation, people who more legitimately belong in detention cannot be held. Also, ICE officials, needing space to house aliens, end up shuffling aliens around the country to find a jail space. An alien arrested by ICE in San Diego ends up in Texas. An alien arrested in New York ends up in Louisiana. I once had a client who was moved from Virginia to Florida to San Diego in search of a space. Of course all that transporting of aliens does not come cheap. Plus, how does a family of a loved one in Virginia find a lawyer to represent their relative in San Diego? How does an attorney work with a family 3000 miles away?
Until mandatory detention laws are amended, programs like the ICE jail screening program are guaranteed to be a cost-benefit fiasco for the America. November 13, 2009.