Immigrants Detained and American Families Pay the Price
THE ISSUE: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act by mandating that the Immigration and Naturalization Service (INS) detain nearly all immigrants who have committed a crime. The list of crimes which subject an immigrant to mandatory detention is extensive, and includes nonviolent crimes, crimes which occurred in the distant past, and crimes for which no sentence was served. Mandatory detention went into effect on October 9, 1998. Since that time, many lawful permanent residents who have been in the United States for many years and who have U.S. citizen family members have been locked away indefinitely in INS facilities and local jails with no possibility for release.
BACKGROUND: Prior to the mandatory detention provisions enacted in the '96 law, INS could exercise its discretion and decide to release a particular detainee if it was determined that the detainee posed no risk to society and was likely to appear for proceedings. An Immigration Judge could hear evidence about a detainee’s U.S family members, length of residency in the U.S., and rehabilitation and decide whether or not he or she deserved to be released. Both INS and an Immigration Judge had the authority to release an individual who posed no danger to the safety of others and was likely to appear for future hearings. By mandating detention without the possibility of release, IIRIRA took away this discretion.
The mandatory detention provisions also operate retroactively, according to the Administration's interpretation, and require the detention of individuals who committed non-violent offenses, including some misdemeanors, even years before IIRIRA became law. Many long-time lawful permanent residents have been detained without the possibility for release for offenses committed years ago.
Any change in the mandatory detention rules requires legislative action. Mandatory detention of lawful permanent residents, however, has been found unconstitutional by a majority of federal courts which have considered the issue.
CURRENT STATUS: INS issued policy guidance on October 7, 1998 indicating its detention priorities. The INS memo began by stating that compliance with the mandatory detention provisions is "virtually impossible," and indicated that individuals released prior to the new detention rules will not be targeted for re-detention. However, when the INS comes into contact with an immigrant subject to mandatory detention, for example during a citizenship interview or upon return to the United States from a trip abroad, the immigrant is likely to be taken into custody without possibility for release.
AILA's POSITION: The mandatory detention provisions of the 1996 immigration law go too far and should be reformed. INS should not detain non-violent immigrants, including refugees, asylum seekers and permanent residents, who pose no risk to society. To do so wastes taxpayer money and diverts much needed resources from the legitimate and necessary task of detaining those violent
aliens with criminal histories. INS, itself, has taken this position. INS must have the discretion to release immigrants who pose no risk to society and are likely to show up for their hearings. The vast majority of immigrants pose no risk to American society and should not be treated like criminals. AILA strongly supports reform of the mandatory provisions. Mandatory detention goes too far and hurts American families.
OTHER RELATED ISSUES:
Indefinite detention - The INS is unable to return some detainees with final orders of deportation or removal to their countries of nationality. These detainees are from Vietnam, Cuba, and other countries with which the United States has no diplomatic relations or which refuse to accept the return of their nationals. Consequently, immigrants from these countries languish in INS detention for years. These individuals are commonly known as "lifers," since there is no end in sight to their detention. Many of the approximately 3,500 "lifers" are lawful permanent residents who entered the United States as refugees when they were children.
On April 30, 1999, INS Commissioner Doris Meissner announced a new mandatory review policy for long-term detainees. This policy calls for the regular review of individuals who have final deportation orders but whose immediate repatriation is not possible. Under previous INS policy, District Directors had this authority. This policy announcement merely requires that these reviews take place and that they are conducted in a regularly scheduled manner. While INS makes a commitment to fairness and consistency in this policy, it is too early to tell whether the April 30th memo will have any meaningful impact on those indefinitely detained.
Indefinite detention has been found unconstitutional by several courts. In U.S. vs. Zadvydas, where an immigrant was detained for four years beyond the completion of his criminal sentence, the court stated that "the probability of permanent confinement is an excessive means of accomplishing the purposes sought to be served… This result ‘shocks the conscience’."
Hubbing - AILA strongly opposes the INS Central Region Hub Site Detention and Removal Plan. Under this INS plan, processing of detained immigrants would be centralized based not upon the place of apprehension, family or community ties--but rather based on the national origin of the detainee. Ostensibly, this plan was supposed to maximize limited agency resources and increase efficiency. While AILA is skeptical about any "resource maximization" outcomes, we are convinced that this plan violates civil rights, raises due process concerns, and will split families apart.
Of particular concern is the probability that foreign nationals who have been "hubbed" would be deprived of adequate legal counsel and representation, and largely denied access to attorneys familiar with their cases and circumstances. Removal proceedings will be hampered because of the inability to access witnesses, documents, and evidence, and also made far more complicated by the loss of family assistance. In addition, those detainees whose convictions have the potential to be reversed or pardoned will be unable to access the courts or counsel familiar with the relevant state process. In all too many cases, the proposed "streamlining" of court proceedings (through videoconferencing or telephone witness examination) will lead to confusion and further delay rather than efficiency.
Civil rights and due process must not fall victim to the agency’s needs to balance an increased workload with limited resources. Given the negative consequences of the Hub Site Detention and Removal Plan, we have urged INS to develop alternative plans.