Immigration and Criminal Justice: Facing the challenges of

Immigration Enforcement and Reform

Leigh-Ann Jara Directed Independent Study

August 1, 2014

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Introduction

Since stricter immigration laws were passed in 1996, more and more immigrants

in the United States have been incarcerated (Kalhan, 2010). This could be if they

committed violent, property or public nuisance crimes, or because they breached

federal/state immigration laws; and even perhaps for both reasons (Jonas & Tactaquin,

2004). Unfortunately, the US Citizenship and Immigration - heretofore referred to as

previous name of the Immigration and Naturalization Service (INS) - made these

changes not based on research but due to a ‘moral panic’ to be tough on illegal

immigration and immigrant crime. This coincides with the similar Criminal Justice

paradigm of waging a war on crime (Lawston & Escobar, 2009/2010; Welch, 2002). The

1996 laws also came with the ability to be applied retroactively in order to incarcerate or

deport immigrants. This means that even if a person were living lawfully in the U.S. for

years and had committed a crime anytime in their past, they could now be deported,

that is even if they served their sentence. Additionally, the legislation meant that if the

immigrant’s offense was punishable by probation, they could still be deported (Welch,

2002).

It is this moral panic over immigration that has fomented and grown in intensity

with the terrorist attacks of 9/11; Welsh (2002, p.5) states that the laws were due to

“moral panic…through distorted lens of racial and ethnic stereotypes.” The immigration

laws are controversial to sparing viewpoints because the dilemma is not a clearcut

liberal vs. conservative, or democrat vs. republican issue. The problem and solutions

are multi-faceted and affect many aspects of American life. Immigration advocates feel

that law enforcement actions are racist, and that the laws unfairly target immigrants with

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minor infractions. Other feel that Americans lose their jobs to immigrants, the country

cannot support the influx of new arrivals who do not pay taxes. Conversely, more

people would mean prosperity and an economic boost due to their spending, as well as

provide for an additional revenue generated from employers who would pay a tax for

each immigrant they hire.(Welch, 2002).

As the number of prisons being built in the U.S. is rising, many institutions are

becoming specialized in the type of prisoners they incarcerate. According to Lawston

and Escobar (2009), incarceration, especially for those who have not committed a crime

(other than breaching Federal Immigration Laws), can have everlasting psychological

effects, separate families, and expose detainees to abuses and inadequate healthcare

(Díaz, 2011; Hussain, 2007).

Welch (2002, p.7) states that “prisoners [are] treated as raw materials that

produce economic gain for local and private jails.” The industry of private prisons is a

billion dollar industry and the number of detainees is steadily increasing. The largest

company (and the one to benefit most from detaining immigrants) is the Corrections

Corporation of America, or CCA. The CCA has detained almost 1 million people

awaiting deportation and spends millions each year in their lobbying efforts in congress

and with federal agencies (“The Business of Detention,” n.d.). The privatization of

prisons has been so successful, that the companies lobby for ‘anti-immigrant’ legislation

in hopes of housing more people and earning more money – without real regard for the

detainees or the welfare of the nation. Yet, further research is required to determine the

exact amount of influence the main companies have in congress and how that

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influences our nation’s laws regarding Homeland Security (“Detention Watch Network”

n.d.; “The Business of Detention,” n.d.; ).

This paper will analyze these issues and related ramifications to tax payers,

detainees and Homeland Security, as well as offer possible recommendations. Some of

the answers to be researched will include whether immigrants are detained for crimes

they committed or solely because they are undocumented; the length of detainment for

immigrants at different points in their judicial proceedings and the conditions under

which they are held. Lastly, recommendations to improve current policies regarding

incarcerating immigrants as a reaction, instead of addressing the root cause of the

incarceration en masse will be explored (Lloyd, Burridge & Michelson, 2009) .

Literature Review: The Contrasting Politics of Immigration

Enforcement

Opinions are diverse and include conflicting philosophies. Welch labels and

describes some of the ideologies as follows:

Nativists are against immigration and feel that the foreign elderly come to US to

siphon off the public welfare system and retire. Note, if immigrants enter the US or

adjustment to the status of refugee, than can qualify to receive Social Security Income

for up to seven years, at which time they must become a citizen to continue to receive

these benefits. The nativists are also described as racists who think a‘brownization’ of

the US is imminent as immigrants with darker complexions immigrate to US. Further,

these also promote population control and site environmentalism (conserving

resources) as reasoning to place immigration restrictions and limits. They spread

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negative connotations of immigrants, there is a perceived notion that immigrants are

inferior, criminal, and/or terrorists (Welch, 2001; Eriksson, 2010). Conversely, civil

rights groups claim many immigration policies discriminate against immigrants of color.

Job protectionists feel that immigrants take work from the unskilled American

labor force and caused minimum wage and pay scales for these jobs to remain very low

(as illegal immigrants are willing to work for lower wages). While Free Marketers are in

favor of immigrants and think free travel between countries is like a successful

import/export business and can mean financial prosperity for all. Those in favor of

immigrants claim new arrivals add around $80,000 in tax revenue throughout their life,

increase purchasing power, thereby creating new jobs and start businesses (Welch,

2002).

Some immigration activists’ view is that immigrants who entered the US illegally

or overstayed their visitor/business visas have not committed any crime, but are only

hard-working and genuine people who are looking for a better life for themselves and

their families. Welch (2002) supports this view and describes such people who are

residing illegally within the US and have committed a state/local crime as “people who

are just working and just happen to have a DUI” (p.78). However, these people have

violated federal law and thus, have committed a crime. In addition to the crime of

overstaying a visa or entering illegally, some have also added knowingly and willingly

providing false documentation to immigration officials. Ironically, even among

immigrants living in the US, the general sentiment is that illegal immigration should not

be tolerated.

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Lawston and Escobar (2009) state that laws, and those that draft and institute the

laws, which could label any immigrant as “criminal” are anti-immigrant. Crime is

conceptualized through provision of orderly labels and definitions of societal constructs

which shape legislation to perpetuate the desired conventionalities (Lawston &

Escobar, 2009). Additionally, citizens’ fear of crime seems to focus most with peoples

of color and low socio-economic communities (Lawston & Escobar, 2009; Simon, 2007).

Lawston and Escobar propose that the U.S. has singled out black women for

incarceration and scapegoating in the past but is moving to the criminalization of (illegal)

immigrants by espousing “a social structure that undervalues and increasingly punishes

[them]” (2009, p.3).1

Illegal immigrants are wrongly stereotyped and treated as criminals solely for

coming across the U.S. border and that they are labeled as criminals solely because

the federal legislation identifies their action as illegal. However, researchers attest that

the immigrants should not be considered criminal because they did not commit an index

crime (Díaz, 2011). Lawston and Escobar further illustrate this view by describing the

case of a particular immigrant from Mexico who was deported, and while she was

outside of the U.S., she played a part in organizing people who advocated for

immigrants’ rights. She then tried to reenter the U.S. unlawfully. Her actions led to a

27-month sentence in detainment. During her court proceedings, the charge of unlawful

reentry/”criminal alien” were dropped and she was instead charged with “conspiracy to

commit crimes against the United States by promoting undocumented migration” (p.5).

1The most commonly detained immigrants are: Central American, Cuban, Haitian and Nigerian.

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Lawston and Escobar see this as a way to label immigrants as criminals so that they

can be detained, and be held for longer sentences, as in this case.

Díaz (2011) argues that immigrants are stereotyped as being criminal despite

them being less likely than U.S. citizens to commit a crime and that the longer

immigrants live in the U.S., the more likely they will be to commit crimes. His reasoning

is that the immigrants are being corrupted by Americans. He claims that racist policy

makers and an anti-immigrant American public have endorsed enforcement and/or

detainment policies only, rather than address the root cause of the problem and help

those residing in the US. Díaz further posits that white America sees the influx of

immigrants, especially people of color,as “threats to the degenerating white hegemonic

order” which causes panic as lawmakers fear the “browning of America” just as the war

on drugs sought to restrict the freedoms of blacks (2011, p.35). Díaz and Welch

provide another example racism in policits through passage of such laws as the

Personal Responsibility and Work Opportunity Reconciliation Act which tightened up

restrictions for those who can receive welfare (It is limited to refugees for certain periods

of time.) (Welch, 2002; Díaz, 2011).

Legislation such as the 1986 Immigration Reform and Control Act (IRCA) also

contributed to the public’s view of many immigrants as dangerous criminals becauseit

bolstered border and national security by increasing security and deportations.

Ironically, the IRCA also provided amnesty to over two million people. (Lawston &

Escobar, 2009).

The government reassures the American public by touting that tougher

immigrations legislation and enforcement is for the security of citizens, but in reality is to

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demonize and deport immigrants so as to maintain a Caucasian majority (Díaz, 2011).

Attempting to debunk the Broken Windows theory, he states that as immigrants moved

away from disorganized neighborhoods, they committed less crime. However, the basis

of this theory was that more crime is committed in disorderly neighborhoods (unkempt

areas, loiters, drug users and prostitutes visible), not that immigrants were the source of

the crime in such areas (Martinez & Valenzuela, 2006).

The idea of moral panic is described by Welch as an “exaggerated response to a

[perceived] social problem” (2002, p. 8). The response need not be resulting from an

actual threat to people, however, it is their interpretation of a situation that causes them

to act quickly and perhaps irrational. Moral panic demands stricter immigration

legislation as fear of terror attacks and negative stereotypes frighten the public who

influence the politicians. Politicians running for office can use the public’s moral panic

as campaign platforms. They aspire to win elections by fomenting their constituents’

fear and subsequently supporting legislation which seeks to combat the roots of said

panic. In this case, it is the fear of illegal immigrants that drives immigration policies.

In general, the sway of moral panic surrounding immigration appears to correlate

with the economic conditions within the US – when the economy is good, immigration is

not a concern, however when the economy is down, immigrants, especially illegal ones,

are seen as scapegoats or taking the much needed jobs from unemployed Americans

(Welch, 2001; Jonas, S. & Tactaquin, C. (2004).

Similar to the war on drugs, measures for addressing illegal immigrants appear to

focus on the consequences (mass illegal immigration or drug addicted people) instead

of focusing on solutions. Alternatives to incarceration can include: providing care to

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educate users about effects of drugs and/or medical treatments, or providing illegal

immigrants with the means to be productive (and legal) residents (Simon, 2007; Díaz,

2011; Welch, 2002).

Legal Issues Constitutional Rights of All US Residents, Legal or Not

In Carlson v. Landon (1952), it established that non-US citizens were also

protected under the constitution and, therefore, entitled to due process and a hearing

before they can be deported (“Justia US Supreme Court”). Hussain explains that “Because

the Equal Protection Clause of the Constitution [14th Amendment] applies to all persons,

not just citizens, federal courts have been forced to balance plenary power with the

constitutional rights of non-citizens” (2007, p.140). Additionally, Hussain asserts that

the federal criminal justice system is more apt to allow for the Equal Protection

Amendment to be applied to cases when the accused immigrants has committed

crimes not related to immigration (Hussain, 2007).

However, there is still debate as to what extent this amendment protects immigrants.

According to Welch (2002) and the US Supreme court2, despite foreign nationals

not having the right to enter or stay within the US without permission, “once here, the

Constitution protects them from discrimination based on race and national origin and

from arbitrary treatment by the government” (p.66). Even those awaiting a deportation

hearing are entitled to advanced notice of the hearing, legal representation, information

of the charges against them and an interpreter.

2Yick Wo v. Hopkins (1886) held that all people within the US were entitled to 14th amendment rights. Bridges v. Wison (1945), ruled that due process also protects immigrants.

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In 2000 and early 2001, congress and the American people were changing their

views on stiff immigration laws. In 2001, President Bush considered implementing a

Guest Worker Program for workers coming in from Mexico and the U.S. Supreme Court

“declared the retroactivity and automatic deportation provisions to be unconstitutional”

(Jonas & Tactaquin, 2004, p.72). However, the terrorist attack on 9/11 caused

legislation of a punitive nature to be introduced, i.e. the USA Patriot Act of 2001. This

Patriot Act allowed immigrants suspected of terrorism or terrorist associations, to be

detained for a week without knowing why, preventatively detained them and again

brought ‘secret hearings’ into the process. In 2003, the Supreme Court ruled that even

legal permanent residents could be held indefinitely while awaiting their deportation

hearing if they had been convicted of a crime. Also that year, legislation was passed

that allowed the FBI access to citizens’ banking information without the person’s

knowledge (Jonas & Tactaquin, 2004)

The Legislation of 1996 and Beyond

The tougher immigration legislation of 1996, the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA) was a solution enacted party due to the legislative

response to immigration in 1986 with the Immigration Reform and Control Act. This

1986 legislation granted amnesty to 2 million civilians who had been present in the US

for at least four years by allowing them to become lawful permanent residents. To this

day, applications for residency under this program still trickle in to the INS. This law

also funneled more money into enforcement, border patrol and the deporting of ‘criminal

aliens.’ (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011, Lloyd, et al., 2009).

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The IIRIRA relies more on detainment rather than on alternative methods for

housing or keeping track of immigrants awaiting hearings or adjudication of their

application(s). These laws follow the general approach prevalent in the Criminal Justice

paradigm in the US, which is one of “penalties, police and prisons” (Welch, 2002, p.7).

The incarceration approach relies on physical restraint and confinement rather than the

social control prism which addresses “adverse societal conditions, including poverty and

inequality” (Welch, 2002, p.7).

The INS did not anticipate the negative consequences of the IIRIRA. Some of

the negative consequences of these laws include a dramatic increase in the number of

those detained, violations of civil and human rights and denial of due process.

Furthermore, laws such as this one allow for: secret evidence (Welch, 2002; Hussain,

2007), mass detention and racial profiling. Hussain states that new programs instituted

under the USA Patriot Act of 2001, such as National Security Exit-Entry Registration

System target Arabic men. In 2003, the Department of Homeland Security announced

they would automatically detain asylum seekers if they were from a list of countries

suspected of terrorism. He claims that racial profiling is not effective, as terrorists will

then recruit those outside of the stereotype. He also asserts that Muslim and middle-

eastern peoples are unfairly targeted because a disproportionate amount of them are

deported and/or detained, as compared to illegal immigrants from Latin America

(Hussain, 2007).

The IIRIRA takes a multifaceted and overarching approach to instituting

restrictions on immigration. For instance, new requirements were placed on financial

sponsors of those seeking to immigrate into the US. Immigrants can now be

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immediately deported (or at least fined and/or imprisoned) for not carrying their

immigration documents at all times. Once deported, they would not be admissible into

the US for up to 10 years. (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011; Jonas,

S. & Tactaquin, C. (2004)

The law does not differentiate between asylum seekers and those who have

committed deportable crimes. Asylees are people who apply US residency once they

are in the US. Ayslum is granted for those who face persecution in their home country

(e.g. whether it based on “race, religion, national origin, social group, politics …

domestic violence and attacks on gays”. (Welch 2002, p.92).3 Asylum seekers will often

enter the US illegally, and file for immigration benefits once they are residing in the US.

Despite them fleeing their homeland due to persecution, they are categorized simply as

illegal immigrants, and many times literally and figuratively categorized as criminals who

are then seen as a threat because they are incarcerated – whether in a federal

detention center or local or state jail.

Additionally, the IIRIRA practically eliminated the right to due process by not

requiring judicial review of deportation decisions. This “disrupts the separation of power

between the courts and the executive branch of government” (Welch, 2002, p.67).

Another controversial aspect of the law is that it allowed for secret evidence to be used

against suspected terrorist detainees as grounds for deportation during their hearing.

Neither those detained nor their attorney, can know what information is being used

against them, in the name of national security (Welch 2002; Hussain, 2007).

The IIRIRA places emphasis on confining violators in federal, state and county

facilities which can be akin to, or actual, prisons with harsh living conditions. Perphas,

3Refugees are those who apply for admission into the US from outside the country.

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the most disconcerting piece of the law is that it reclassified crimes as aggravated

felonies, which if an immigrant is convicted of or admits to, they can be detained and/or

deported. Some of the now deportable offenses which were previously classified as

misdemeanors include:

• Driving under the influence, DUI

• Simple Assault

• Shoplifting, petty theft (if the person was sentenced to one year imprisonment)

• Drug offenses (The problem is that the law does not differentiate between illegal

drugs (cocaine, marijuana (in most states) and drugs which may be legal in other

countries (steroids)) (Welch, 2001; Lawston & Escobar, 2009; Díaz, 2011; Jonas,

S. & Tactaquin, C. (2004).

Although, the intent of the IIRIA was that it would apply mostly to illegal immigrants,

it has mainly affected lawful permanent residents. Within a year of the law passing,

“more than 200 legal permanent residents who had minor brushes with the law were

apprehended and detained by the INS.” (Welch, p.59, 2002). Specific to asylees, the

new policy also allows for indefinite detainment – especially in cases in which the US

does not have a reciprocity agreement with the immigrants’s home country and/or no

other country will take them (some countries include: “Cuba, Iran, Iraq, Laos, Vietnam,

part of the former USSR, the Gaza Strip (Palastine Homeland)” (Welch, 2002, p.66).

What especially makes the law a conundrum is the retroactive application of the law

to prior offenses – regardless if the offender served their sentence, or fulfilled the terms

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of their probation, they can still be found inadmissible or deportable. Another major

concern for immigrants is the undaunting realization that this law also make it possible

for the citizenship of naturalized citizens to be revoked if they admitted to, or were

convicted of these offenses (Welch 2002; Díaz, 2011; Hussain, 2007). This overarching

policy has boosted the number of immigrants incarcerated, while diminishing the

immigrants’ morale yet profiting the Prison Industrial Complexes and policymakers.

Economic Issues

Incarceration as a Business

One reaction to the perceived increase in lawlessness was in the growth of

prisons and the criminalization of immigrants through legislation and the catch-22 of

publicity fomenting the general populations’ fear. The criminalization of immigrants was

not an issue that serendipitously appeared and shaped legislation, but has been a

constant in the war on crime and a mission of the U.S. mass-incarceration paradigm

(Lawston & Escobar, 2009; Simon, 2007). Around 1991, the INS entered the business

of prisons and business appears to be booming and locations increase, including over

900 facilities contracted to house immigrants. Many local and private jails depend on

funds received from the CIS for housing immigrant detainees; in the Wicomico facility in

Maryland, they earn $50 each day for a bed space for which the county pays only

$17.89; in one year, the jail earned $2.7 million just from funds from the UNS. Due to

extreme penny pinching, however, the facility, and others like it, choose to skimp on

care provided to inhabitants. Subsequently, they are then investigated by the federal

agencies for holding immigrants in in humane conditions. Prisons and jails, agree to

house immigrants because quite often the per capita income can be twice that of citizen

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offenders. (Welch, 2002). The government continues to build and contract with more

and more prisons in an effort to make a financial profit while sacrificing the loss of

freedom and judicious treatment for those with little hope of making their predicament

known (Lawston & Escobar, 2009). The swelling corrections/prison industrial complex

continues to grow as profit and political careers can be made from the proceeds (Díaz,

2011; Welch, 2002; Lloyd, et al., 2009). In this business model, the ‘raw materials’ are

the people held in the prisons. They are counted as ‘beds’ and not seen as individuals

with rights or needs. Tens of millions of net profit are made by corporations with a part

in the Prison Industrial Complex. The illustrious line of business is led by three main

corporations, The GEO Group, Corrections Corporation of America, and Management and

Training Corp. These corporations house immigrants, and also generate income by

providing transportation and medical care for them. They have also “spent at least $45

million combined on campaign donations and lobbyists at the state and federal level in

the last decade” and earn tens of millions in net profit (The Associated Press, 2012).

The perpetual detainment cycle appears to being with the public’s fear of illegal

and/or legal immigrants, which gives way to moral panic then capitalized on by

politicians passing legislations which incarcerated immigrants. The result is social

control of populations by removing them from main-stream society and labeling them as

deterrent or even dangerous. Thereby enabling the cycle of exaggerated fears

marginalizing groups of people who are then removed, when is indicative of racism in

policy making and implementation. Such legal maneuvering is further indicative of a

relationship between the Prison Industrial Complex and the government, as stricter

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immigration policies feed violators into local, state and federal detention facilities (Díaz,

2011; Hussain, 2007; Welch, 2002, The Associated Press, 2012).

Companies traditionally thought to be out of the scope of immigration

enforcement have also become involved. Several airlines, such as Delta and Northwest

have paid for motels, emergency medical care, food and private security until other

arrangements can be made for the custody of immigrants who either were denied entry

into the US and/or awaiting adjudication of their asylum applications.

Justice System Issues

Detainment

Detainees are often sent to county and state prisons and jails, are not differentiated

between the resident criminals and can be housed with violent offenders. This prisons

and jails are even less capable of meeting the needs of the immigrant ‘inmates’ than are

federal facilities. While detained, the immigrants may face:

• Cultural and language barriers,

• Digestion issues (not accustomed to American food)

• Little or no access to legal representation

• Physical, emotional, sexual abuse

The Corrections Corporation of America (CCA) has a 3,000 bed detention center

in San Diego. Since 2001, the number of immigrant detainees in the U.S. has more

than tripled so that there are about 400,000 detainees each year and on average, over

30,000 immigrants are in custody each day (Jonas & Tactaquin, 2004;Lawston &

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Escobar, 2009; The Associated Press). As funds within DHS have been funneled more

to the enforcement side rather than the service side, adjudication of applications for

citizenship and residency slowed down and the amount of applications increased. This

then exacerbates problems for many seeking residency as their status may expire while

awaiting adjudications

The practice of indefinite detainment, however, was addressed in Zadvydas v.

Davis (2001) which held that the government cannot indefinitely hold deportees once

they have been adjudicated as ‘deportable’. The decision also held that they

government cannot preemptively hold suspected terrorists or others in an effort to

prevent them from committing a future crime/attack (Hussain, 2007). However,

indefinite detainment is still a possibility while people are being held awaiting

adjudication of their asylum application, deportation or while the CIS locates a country

that agrees to accept them (Welch, 2002; Díaz, 2011). (At times, deportable immigrants

have remained in custody because their country of origin does not participate in a

reciprocity agreement and/or alternatives countries (chosen by the deportee) refuse to

admit them.)

A concern regarding detainment is not to repeat the mistakes of the past. Some

fear and do not want to repeat the internment camps instituted during WWII in which

Japanese and Japanese-American civilians were held, at first under the auspices of

protecting them. Some were detained for three years, and in that time they lost their

homes, business and family ties. Another example from history is in the 1980s, the

federal government oversaw an internment camp in Arizona for Central American

citizens who sought refuge in the US.

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Since authorities do not regularly inspect immigrant detainment facilities,

especially those privately owned, much abuse can occur before it is discovered, if it is at

all. Because of media outlets and anti-immigrant groups touting the criminality of illegal

immigrants, not much is done to alleviate their conditions as the public then views these

people as deserving of the maltreatment they deserve because they breached federal

law (Lawston & Escobar, 2009). Perhaps the plight of the detainees would be

ameliorated if the general public were aware of the magnitude of the problem of so

many being detained.

An example of a poorly run corrections corporation is the case of ESMOR facility

in New Jersey, in which the detainees rioted against harsh conditions and abuse from

the guards. An investigation found that some guards had physically abused the

inhabitants, stolen their personal property, and caused them stress and anxiety through

humiliation and startling them awake during the night. Some reasons cited for the poor

management were that ESMOR did not provide enough personnel and attrition rates

were high due to the low pay; and with the constant turnover, the guards were

undertrained. The detainees rioted because they were being held an average of up to

115 days, denied natural light, privacy in the bathroom, access to their legal counsel

and they were shackled. As a result, the detainees were later transferred to a county

jail, where they also alleged abuse by the guards.

Conditions of Confinement for Detained Immigrants

Incarcerated immigrants have a limited voice with limited access to legal counsel

and advocacy groups, therefore, they have little opportunity to promote their side of the

story or build up a defense. On the flip side, the INS is not only a fee-based agency --

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receiving funds from the 1,000s of applications and waivers filed -- but they are also

allotted monies from congress. The agency is dichotomous in that it enforces the

immigration laws while also providing service to those seeking visa, residency, work

permits, citizenship, etc. Welch (2002) claims that the INS is more interested in their

enforcement side as they increase jail space by building more ‘processing centers’ and

procuring contracts with county and state jails and prisons, rather than determining the

best way to resolve the problem of illegal immigration (Kalhan, 2010). Following are

many aspects of the prison industrial complex paradigms which proliferate diliemas for

those in custody.

Restrictions Detainees are held with more restrictions such as preventing them from

communicating with their support system of family, friends, community and/or attorney.

This extends their physical and emotional isolation compounded by language and

cultural barriers. Communication is paramount for a detainee as they are unable to

make international calls to request required paperwork or make other arrangements to

support or understand their asylum case (Welch, 2002). A myriad of obstacles and

challenges for detainees are discussed below.

Always Moving Detainees are frequently transferred from one facility to another and from state to

state, many times without notification to their family or attorney. This causes isolation

from familiar connections and is expensive for family to travel, whether nationally or

internationally. People in their support systems may not know where to go to find their

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loved one or client. Additionally, the incarcerated person can easily lose their personal

belongings, including critical paperwork for their case. Critics say the INS does this in

order to punish inmates, while the INS claims the moves are to move detainees closer

to their support system (Welch, 2002).

Recordkeeping Ironically, there have been reports that some immigrants who were scheduled for

deportation hearings, were ordered to be deported because they failed to appear for

their hearings. However, these immigrants were not able to appear because they were

in INS custody at the time, and the agency did not realize that they held the immigrants.

Thus their attendance at the hearing had not been arranged, and they were ordered

deported.

Limited access to attorneys One-third of those seeking asylum in the U.S. do not have a lawyer, yet with legal

representation, an applicant is six times more likely to received asylee status.

Additionally, immigrants may not be able to afford an attorney who specializes in

immigration law and without that experience, a complicated case (or even a simple one)

can easily be lost. Immigrants are vulnerable and more likely to be cheated by

unscrupulous lawyers who have no expertise with immigration law. These problems are

exacerbated by the possible multiple transfers, restrictive visitation and telephone

policies (Welch, 2002). Furthermore, many immigrants have pled ‘nolo contendere’ to

charges, not realizing or knowing that they would then be deemed deportable, despite

not being convicted. This is because, as stated earlier, that if one is convicted or admits

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to a deportable offense, they can be deported. Whether it be because they did not

understand this and thus pled ‘nolo contendere/no contest’ or because they were ill-

advised to do so by an attorney who did not understand the full ramifications of the law

(Christian, 2010).

Maltreatment while e confined Confinement conditions can affect detainees physically, psychologically and

emotionally. Medical and mental health care can be lacking and/or substandard.

Detainees have suffered abuse at the hands of those charged with looking after them.

They have been handcuffed and strip searched which is the same treatment received

by the criminal inmates. Reportedly some have even been shackled with weights while

being interviewed by INS officials. Their treatment is worse in county jails as they are

dressed in prisoner uniforms and the same rules apply to them as to the inmates

regarding food, hygiene, contraband items. Despite all the federal facilities being

named “Processing Centers” by INS officials, their façades are that of a jail or prison.

The head of Krome Dentention Center in Miami explained the buildings looks like jails

because that’s what they are – jails (Welch, 2002).

Ill-prepared system County and other local jails are not designed for long-term stays and cannot meet

the needs of immigrant occupants who are being held on immigration violations (as

opposed to violent offenses). The short-term model does not allow for programs in

which to participate and keep busy such as education or vocational training, so

detainees have nothing to do while they are incarcerated. There is usually no library

and the only activity is to watch television or read sparse materials in English. Many

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times such jails are overcrowded and unclean. In the Orleans Parish Prison in

Louisiana, there were reports of rodent and roach infestations, no bedding available and

no central heating or air conditioning. (Welch, 2002).

Communication barriers The non-English speaking detainees can find it much more difficult to obey rules,

obtain needed medications or make any type of requests as the written or verbal

instructions are not given in their language. Some facilities employee Spanish-speaking

guards who can communicate with detainees, however, as detainees are from all over

the world, the Spanish option may not be helpful to them either (Welch, 2002).

Substandard healthcare

Usually, only emergency medical treatment may be provided to detainees. There

is a lack of medical staff and what staff is available is not sufficiently trained; these

factors can cause delays in treatment, misdiagnosis and inappropriate remedies. Also,

many immigrants have to pay for their medical services. Therefore, those with long-

term or chronic conditions (e.g. tuberculosis, AIDS) may not receive the care they need

because they cannot afford it. (They do not have an income while incarcerated and it is

hard for them to access any funds they might have if no one knows where they are.) In

one instance, instead of being provided medical care, a detainee with active

tuberculosis was taken and released to a homeless shelter (Welch, 2002; Lawston &

Escobar, 2009).

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Violence while incarcerated

Despite the Prison Industrial Complexes claim that immigrants are well looked

after while incarcerated, a few of the facilities have exposed as perpetuating heinous

violent atrocities against “inmates”. For example, the Krome Dentention Center in

Miami was investigated after employees who reported detainee abuse were let go. The

management of INS at the time, denied the allegations stating they had no reason to

abuse detainees. Immigrants advocacy groups cited that “Detained immigrants are a

powerless group. . . without recourse to normal political or legal channels” and

therefore, would not be able to report abuse (Welch, 2002, p. 123). The wrongdoings,

also including sexual abuse and bribery and were brought to light and many corrections

officers who were subsequently let go or reassigned. Disturbingly, some of the same

employees had been implicated in similar abuse charges years before. Another facility,

the Orleans Parish Prison in Louisiana held gladiator-style fights in which Asian

immigrants were forced to fight county inmates. The local sheriff’s department was

sued and they settled outside of court.

Maltreatment of Women and Children

Women are the fastest growing segment in prisons (not just immigrants) and

their voices again, are not heard, but silenced within the prison culture (Eriksson, 2006).

Also, women are treated disparagingly and are sometime not even segregated from the

men. They suffer more abuse from inmates and corrections officers, even being

sedated and raped (Eriksson, 2006; Lawston & Escobar, 2009; Welch 2002,). In one

instance, a Canadian woman was sentenced for an indeterminate amount of time

because she was deemed a dangerous offender for possible crimes that she might

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commit in the future. Eriksson (2006) claims that the structure of prisons targets

immigrants, indigenous peoples and women of color. Women are treated more harshly

when it comes to sentencing and breach of personal autonomy than are male prisoners.

The struggle of trafficked victims is largely not addressed as they are treated as any

other illegal immigrant and deported without considering the trauma they have suffered

or that they may have even entered the country against their will ( Eriksson, 2006;

Welch, 2001).

The Hutto facility is a private institution in Texas which houses entire families

who have not committed crimes. Still these facilities are more like prisons than housing

(Lawston & Escobar, 2009; Díaz, 2011). The Department of Homeland Security stated

in 2009 they would stop using this facility, however, it is now run by CCA as a women’s

minimum security prison (Lloyd, et al., 2009; Texas Prison, n.d.).

In the decision of Flores v. Reno (1993), the INS agreed to release children to

relatives or place them in non-secure shelters versus sending them to a juvenile

detention center. Yet by 1997, violations were already discovered. For children,

separation from parents leaves them even more vulnerable than the adult immigrants ,

with no one to protect them (Welch, 2002; Lawston & Escobar, 2009). Sometimes

adolescents are placed with adults inmates, without regard for their safety. The

Department of Health and Human Services was tasked with administering the

Unaccompanied Alien Children Program by the Homeland Security Act of 2002.

Despite this program outlining that children are not to be placed in solitary confinement,

are to have access to public libraries, and be given opportunities to participate in at

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least two ‘field trip’ type outings each week, investigations have found detention centers

in violation of all these requirements (Office of Refugee Resettlement, n.d.).

All of the aforementioned circumstances are negative conditions which contribute

to greater feelings of isolation and depression. The environment of the facilities and

long periods of confinement while awaiting a hearing, or adjudication of their cases, can

also cause stress and depression. Further, many asylees already suffer from “post

traumatic stress disorders” are ignorant of their legal rights, and fear government

authorities (Welch, 2002, p.120). In addition to the aforementioned, when non-criminal

immigrants are placed in an environment wherein they can be incarcerated alongside

convicted criminals – all conditions form a synergy of exceptional trauma and suffering.

Alternatives to Incarceration/Recommendations

It is necessary to have laws that aim to secure borders and place restrictions on

immigration as these measures will help to maintain the national security. However,

with the number of deportable and inadmissible immigrants currently detained, whether

due to illegal entry, visa overstay or criminal acts, it is illogical and not economically

feasible to incarcerate and/or deport millions of people. Therefore, the situation must be

dealt with via a real-world solution.

Proponents of detaining immigrants, and the INS, see incarceration as a

deterrent to entering the country illegally, however, Welch (2002) posits that mass

incarceration does not work and that alternatives should be explored and applied.

Alternative solutions to alleviate the problem can include: parole or limited release

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(‘checking in’ via telephone or personal visit or ankle bracelet) and limited or even

cessation of detainment of children or vulnerable populations.

Release with Limitations

The ICE has a budge to detain about 34,000 each day, and with the

overcrowding and expense of housing so many, one option is to parole detainees who

are awaiting deportation. There are a couple of options when one is provided a

conditional release: a person is allowed to post bond so they can be free while

awaiting their deportation hearing, or they are fitted with an ankle bracelet so they can

be traced (Childress, 2013). It is estimated that 89% of detainees do not pose a danger

to the public, so releasing the majority of them with conditions should not cause great

fear within the community (National Immigration Forum). This option is much cheaper

than detainment -- approximately $118 per day, vs. $8 per day for the ankle bracelet

(Linthicum, 2014).

A pilot program to evaluate alternatives to detainment on a case-by-case basis

was tested by ICE in 2010. It was deemed efficacious and was implemented

nationwide in 2013. The program, call Risk Classification Assessment (RCA), is an

automated system which accesses the need for detainment of an individual based on

their risk of flight, criminal background, health, age and other vulnerabilities.

Appropriate levels of supervision are then applied to the individual in order to ensure

compliance with immigration laws without depending solely on rout incarceration. The

ICE agency reported great success, 99% of participants appeared for their deportation

hearings (Sampson and Mitchell, 2013; National Immigration Forum, 2013).

Economically, the program costs just $5.94 per day and “if ICE limited its use of

26

detention to individuals who have committed violent crimes, the agency could save

nearly $4 million a night, or $1.44 billion annually – a 79 percent reduction in costs”

(National Immigration Forum, 2013, p. 11).

The Children

Alternatives for immigrant children who are detain can and have included release

to family, friends, or foster care (Welch , 2002). Similar to the RCA program,

unaccompanied children or those separated from their parents, could also benefit from

a similar RCA program which would evaluate their situation as an individual with unique

circumstances. Partnerships in the past have proven successful when the government

is willing to work with social service agencies and other non-government organizations

(Lopez, 2010).

The Institute for Public Policy Research (2010) in the U.K. proposes that all

detainment of children immigrant desist, and that the only way to ensure this happens to

not separate them from their families by incarcerating their familial caretakers. They

further support asylum seeks should be provided with a case worker and have the

ability to stay in the community whilst their case is decided. Lastly, the Institute

recognizes that immigration laws must be upheld, but feel this can be done in a way

which ensures human dignity and family unification. One of the more successful

program they cite is the European Return Fund run by the Refugee Action In Liverpool.

In this program, families were allowed to stay in the community and worked one-on-one

with a case worker who guided them through the asylum process and also advised

them that voluntary departure was an option and provided them with counseling to

prepare them for this as a possibility. For the U.S., such a program could include the

27

cooperation of immigration officials and social organizations such as Lutheran Social

Services or Catholic Charities – which are entities which already assist with refugee’s

adjustment to living in the US by providing them with employment assistance, housing,

healthcare and general support and advice. In cases in which the immigrants are not

approved for asylee status, such programs would also “establish a responsibility on

asylum-seeking families to cooperate with the return process if their application for

asylum was refused” (p.5).

Conclusion

The CCA promotes its facility as a welcoming housing center with few guards, and

refers to inhabitants as “organic material” in a “project pipeline” which brings them about

$143 million in revenue. The company further refers to the stricter immigration

enforcement and subsequent arrests as the demand which drives the market for their

services and facilities. Lloyd, et al. (2009) reports that “mass incarceration contributes

to the structural violence of economic abandonment, racial segregation, and social

infrastructure disinvestment” which causes harm to communities and society in general

(p. 95). Incarcerating thousands of immigrants takes them out of the economy and

away from their families, both of which have negative effects on the individual and their

community, friends and loved ones (Kalhan, 2010; Simon, 2007).

All residing within the U.S., including citizens, should be cognizant of the

maltreatment of immigrants because if the government is willing to violate their human

and constitutional rights, this threatens the stability of democracy for everyone

nationwide (Jonas & Tactaquin, 2004). Misconceptions abound regarding this

troublesome and controversial topic. Yet this issue must be addressed as it affect the

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lives of millions of people directly, and the rest of the nation at least indirectly. The

prevalence of the matter is evident when one examines a few numbers cited from a

Pew Research Hispanic Trend Project: there are approximately 8.4 million illegal

immigrants employed in the U.S. and at least half of all U.S. farm workers are illegal

immigrants (Goodman, 2014).

Historically, administrators have followed the overarching approach of incarceration

rather than providing addressing the causes of the problem, whether it be criminal

offenses or immigration infractions (Simon, 2007).. The Obama Administration has

spoken out on the issue and has indicated its intention to “overhaul detention…[by]

dramatically expand[ing] its predecessors’ aggressive enforcement efforts, particularly

by widening programs to enlist state and local cooperation in federal immigration

enforcement (Kalahn, 2010, p. 56). This impending policy provides added urgency to

coordinate a revamping of the detainment policies as well – considering that more and

more individuals will be affected by such policies. The decision to detain should be a

last resort option after a case is considered on its own merit and alternatives explored

.

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