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A Chance to Reform Punitive Immigration Enforcement

As the U.S. Senate “Gang of Eight” prepares to unveil their comprehensive immigration reform (CIR) bill, tens of thousands of immigrants and their allies marched on Capitol Hill on Wednesday to demand a pathway to citizenship.

The same day, Senator Marco Rubio (R-Fla.) held a closed-door meeting with his Republican colleagues in the senate to assure them that the overhaul will amount to the “toughest immigration enforcement laws in history.” A number of Democrats will have to be convinced of the same before they vote in favor of the bill.

In order to secure bipartisan support for the bill—which is crucial to its eventual passage by a divided Congress—any proposed pathway to citizenship will clearly be accompanied by stepped-up enforcement.  This is not inherently a bad thing. With 11.1 million undocumented immigrants currently residing in the U.S.—most of whom overstayed their visa, rather than crossing one of our two borders—there is a clear need for a legal framework that enforces the law, while also honoring the economic contributions that immigrants make and creating mechanisms for naturalization and integration. The framework must also recognize that immigration-related violations are civil charges, not criminal ones.

Unfortunately, our current immigration enforcement system couldn’t be farther from that reality. The status quo of enforcement is overly punitive and grossly expensive, making the prospect of a significant increase through CIR worrisome.

The new enforcement laws will likely include institutionalization of E-Verify, increased police powers, new mandatory detention and sentencing laws, and proposals for more prisons and detention officers. The bill could also include a trigger provision that would prevent undocumented immigrants from qualifying for a green card until unrealistic goals are met regarding surveillance and migrant crossings on the U.S.-Mexico border.

To understand what’s already happening, let’s start with the numbers. To many, enforcement means deportations—and lately, there’s  been no shortage of those. In 2012, the Obama administration deported a record 409,849 people, and is on track to deport a total of 2 million by 2014—double the total number of all deportations before 1997.

All the while, the number of undocumented immigrants entering the U.S. has declined, and net migration between the U.S. and Mexico has recently hit zero and may have reversed.

The other component of enforcement is the mandatory detention and incarceration of immigrants charged with being in the U.S. illegally. U.S. Immigration and Customs Enforcement (ICE) now detains approximately 34,000 immigrants on any given day, and over 400,000 per year. Since 2005, the immigrant detainee population has increased 85 percent, making immigrant detainees the fastest-growing incarcerated population in the United States.

Many immigrant detention facilities are privately owned and operated, and that the companies running them also represent a major lobby that pressures Congress—particularly Republicans like Senator Rubio—to continuously step up enforcement. Together, the three major private prison corporations, Corrections Corporation of America (CCA), the Geo Group and the Management and Training Corporation, spent about $45 million over the past decade to influence state and federal government. Much of that money was focused on immigration policy, like this year’s CIR bill.

When you look at the duration and conditions of immigration-related detentions, the picture gets grimmer. Over the past few decades, the U.S. correctional system as a whole has increased its use of solitary confinement, keeping inmates in 6-by-13-foot cells for 23 hours a day with limited contact with other individuals. Such practices drew condemnation from the Inter-American Commission on Human Rights last week. Still, ICE has decided to apply this same solitary confinement trend to the immigration detention system.

New federal data indicates that among the 50 largest detention facilities in the U.S.—which together house about 85 percent immigrant detainee population—about 300 immigrants are held in solitary confinement each day. Nearly half of them are isolated for 15 days or more—at which point they are at high risk for mental harm—and one in 10 are held for more than 75 days, where severe mental impact is very likely.

These inmates are being held for immigration violations—which constitute civil, not criminal, charges. However, due to a lack of detention-only facilities, immigration offenders awaiting trial are forced to reside in the same prisons as criminally-sentenced individuals. Some immigrant detainees that are deemed “at-risk” are kept in solitary to protect them from the general inmate population.

The use of solitary confinement is often arbitrarily applied, excessive, inadequately monitored, harmful to mental health and very costly. According to federal data, about 10 percent of immigrant inmates developed some form of mental illness related to their time in solitary, including paranoia, depression, and memory loss. And roughly half of prison suicides among the general inmate population occur as a result of this type of segregation.

Beyond the human cost of overly-punitive enforcement, there is a real monetary cost shouldered by tax payers. Overall, ICE spends over $2 billion annually to detain, clothe and feed the 34,000 immigrants in the system. According to The New York Times, solitary confinement “can triple the cost [of regular detention] and be hundreds of times more expensive than alternatives like using electronic ankle bracelets.” The cost is compounded by cases of family separation. Between 1997 and 2007, 108,000 parents of U.S.-citizen children were deported, resulting in many of those children entering the foster care system or causing families now lacking a breadwinner to depend on public assistance.

What does long-term detention and solitary confinement accomplish? Mitt Romney-style self-deportation. Instead of languishing in correctional facilities or being subjected to what many consider a form a torture, immigrant detainees—who often lack access to legal counsel—increasingly plead guilty to their immigration charge and choose deportation from the only country that many call home.

Ultimately, the Gang of Eight’s CIR bill will strike a compromise between a pathway to citizenship and stepped up enforcement. Looking at the current state of affairs, it is clear that we need smarter enforcement that deports convicted criminals but that employs a humane procedure for civil offenders to await trial in detention-specific facilities.

CIR offers a chance to right the ship. To do so, congressional leaders should pursue the following reforms:

1) End the use of solitary confinement and mandatory detention for non-violent detainees;

2) Pursue cost-effective alternatives to long-term detention, such as ankle bracelets;

3) Ensure that detainees—including segregated ones—are afforded treatment that complies with ICE standards, including separate detention-specific facilities and access to counsel, outdoor recreation, telephones, etc.;

4) Create mechanisms for civil society to monitor detention practices and hold ICE legally and publically accountable for failing to meet standards.

In the coming months, the U.S. has a chance to drastically reform its immigration system for the first time since Ronald Reagan was president. If we choose pragmatic solutions to address issues of citizenship and enforcement, we can ensure that we’re not having the same discussion again 30 years from now.

*Richard André is a policy manager at Americas Society and Council of the Americas (AS/COA).

Any opinions expressed in this piece do not necessarily reflect those of Americas Quarterly or its publishers.
Tags: Immigration, Comprehensive Immigration Reform, Immigration Enforcement

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