ICE's Long-Awaited Detention Reform Prompts Questions from Supporters and Detractors
In the first quarter of 2012, Immigration and Customs Enforcement (ICE) made two announcements affecting the US immigration detention system — the establishment of new standards for all ICE detention facilities and the opening of the first-ever civil detention facility designed and built by ICE. According to the agency, both of these developments reflect ICE Director John Morton's longstanding commitment to create a "truly civil detention system" for immigration detainees.
Outside ICE, however, the new reforms have had something of a chilly reception. Depending on their perspectives, critics have branded the new measures as either too lenient or too strict. The changes have also prompted a new round of questioning over the way in which the Obama administration is handling the nation's growing immigration detention system — which last year held upwards of 420,000 noncitizens.
At a recent House immigration subcommittee hearing on the new reforms, titled "Holiday on ICE," the chair of the House Judiciary Committee, Congressman Lamar Smith (R-TX), compared the new standards to "hospitality guidelines" for unauthorized immigrants. Conservative lawmakers also criticized the cost of the new ICE detention facility and said that ICE was jeopardizing public safety by releasing from detention known criminal aliens.
Immigrant advocates, on the other hand, believe that in issuing the new guidelines, ICE has lost a major opportunity to recast the immigration detention system in a civil-detention mold. To them, the new standards continue to be based on the American Correctional Association's guidelines for penal detention in jails and prisons. And since the new guidelines are not issued by a regulation, advocates argue that they are not legally enforceable.
Advocates also believe that, instead of building detention facilities, ICE should release a larger number of noncitizens from detention on their own recognizance or enroll them in "alternatives to detention" (ATD) programs. ATD programs use devices like telephonic reporting and electronic ankle bracelets in order to ensure that enrolled noncitizens attend immigration court hearings and/or comply with orders of removal.
The New Reforms in Context
The recent changes to the immigration detention system are not the first to be announced by the Obama administration. In December 2009, ICE announced — in a major shift from Bush-administration policy — that it would generally release from detention asylum seekers who had demonstrated a credible fear of persecution. The following year, ICE launched an online detainee locator tool, and in December 2011 the agency created a toll-free, 24-hour hotline for detainees who believed that they were victims of crimes or potentially US citizens. ICE has also created the position of "public advocate" to respond to detention concerns raised by individuals and community organizations.
The new detention standards, though highly anticipated and extensively promoted, are in many respects almost identical to the 2008 standards promulgated by the Bush administration. However, they do go farther than the 2008 rules in offering enhanced medical care and protection for discrete groups of noncitizens, such as women; lesbian, gay, bisexual, or transgendered (LGBT) individuals; and persons with disabilities.
For example, the new guidelines require that, when making decisions about whether or where to detain a noncitizen, an officer should give special consideration to factors that would "raise the risk of vulnerability, victimization, or assault" for the detainee, such as being transgendered, elderly, pregnant, or physically disabled. The new standards also include additional guidance on routine healthcare for female detainees and prohibit the use of restraints on pregnant women. In addition, they state that transgender detainees shall be allowed to choose the gender of the guards who search them.
The new standards also strengthen the process by which detainees pursue formal grievances. While the 2008 guidelines provided for at least one level of appeal for grievances, the new standards require that at least two levels of appeals be provided. The new standards also require that medical grievances be submitted to designated personnel in sealed envelopes marked "medically sensitive."
Less than one month after ICE released the new detention standards, the agency announced the opening of its new "model civil-detention facility," the Karnes County Civil Detention Center in Karnes City, TX. The detention center, where ICE plans to house roughly 600 low-security male noncitizens, is designed to allow detainees relatively free and unescorted movement around the facility. The guards — rebranded "resident advisors" — will be unarmed and will wear khakis and polo shirts, rather than traditional guard uniforms. The facility also has a library with internet access, an indoor gym, and outdoor soccer fields, all of which were included to make the center feel less penal and to allow detainees greater access to recreational activities, according to ICE.
Both the opening of the new Karnes facility and the announcement of the new detention standards come at a time when ICE is facing increased criticism over the adverse consequences of immigration detention for one particular group of nondetained family members: minor children of detainees who may be placed in foster care. In a November 2011 report, the Applied Research Center estimated that there were currently at least 5,100 children in foster care because of having had a parent detained or deported by ICE. More recently, ICE released a report indicating that, in the period between January 1, 2011 and June 30, 2011, the agency deported approximately 46,486 noncitizens who claimed to have at least one US-citizen child. Since the reports' release, ICE has promised to allow detainees access to family law materials and the ability to attend their children's custody hearings.
The new changes also follow the Obama administration's decision to request increased funding for ATD programs in the coming fiscal year. The administration requested $111.6 million for ATDs in its FY 2013 budget request, an increase of 54 percent over the amount requested during the previous fiscal year ($72 million). Even if the increased budget allocation is authorized, however, it will likely amount to a small fraction of the amount spent on detention — the Obama administration has requested nearly $2 billion for immigration custody operations in FY2013.
Policy Beat in Brief
Supreme Court Holds Portion of IIRIRA Does Not Apply Retroactively. In a 6-3 decision issued March 28, the US Supreme Court held that an important provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) cannot be applied retroactively. The contested provision allows the government to place in removal proceedings any lawful permanent resident who was previously found guilty of a designated criminal offense (or pled guilty to such an offense) when he or she leaves the United States and attempts to return after a visit abroad. The court's ruling that this provision does not apply retroactively means that lawful permanent residents whose criminal pleas or convictions predate IIRIRA will not be at risk for being placed in removal proceedings upon re-entry to the country.
Prior to 1996, lawful permanent residents who returned to the United States after "innocent, casual, and brief" visits abroad were generally presumed to be admissible to the country. Through IIRIRA section 301, however, Congress eliminated this presumption for certain groups of permanent residents, including: individuals who had been absent from the United States for more than 180 days; individuals who engaged in illegal activity after departing the United States, and individuals who had committed certain crimes in the United States before leaving. Notably, the list of crimes under IIRIRA that may trigger the initiation of removal proceedings for lawful permanent residents returning to the United States is far more expansive than the list of crimes for which lawful permanent residents may be deported while they are residing in the United States.
In holding that the IIRIRA provision does not apply to criminal convictions before the statute took effect, Justice Ginsburg, writing for the court's majority, relied on the legal doctrine that legislation is presumed not to be retroactive unless there is clear evidence that Congress intended retroactivity.
DHS Designates Syria for TPS, Amends Rules on Student Employment for Syrians. Homeland Security Secretary Janet Napolitano announced in late March that Syria would be designated for Temporary Protected Status (TPS) due to concerns that the current military crackdown on civilian protesters in that country might prevent Syrian nationals currently in the United States from safely returning to Syria. Under the terms of TPS, Syrian nationals who show that they were residing in the United States as of March 29, 2012 and meet other criteria will be eligible for work authorization and protection against deportation.
In related news, DHS has also decided to amend the rules governing student employment for Syrian nationals attending school in the United States on F-1 student visas. The amended rule will allow Syrian students who did not previously qualify for off-campus employment to accept such jobs. It will also allow students to work more hours during the course of the week and to scale back the number of hours of coursework that they complete during the semester. The rule is intended to ease the financial burden for Syrian students in the United States who may be unable to receive funding from their relatives in Syria as a result of the current political situation.
ICE Arrests 3,100 Noncitizens in Six-Day Operation. US Immigration and Customs Enforcement (ICE) announced that it had arrested more than 3,100 noncitizens during a six-day operation focused on arresting deportable noncitizens with criminal convictions (also called "criminal aliens"), criminal aliens who had ignored final orders of removal ("fugitive aliens"), and noncitizens who had returned to the United States illegally following the issuance of a removal order. The operation, which ICE has billed as the largest of its kind, took place in all 50 states as well as Washington, DC; Puerto Rico; and three US territories. ICE officials have emphasized that the recent raid is part of ongoing efforts to focus resources on criminal aliens.
Same-Sex Couples File Lawsuit Challenging DOMA. Five same-sex, bi-national couples have filed a new lawsuit in a federal district court in New York challenging the constitutionality of Defense of Marriage Act (DOMA) and its application to federal immigration law. Under current immigration law, US citizens and lawful permanent residents can sponsor their spouses for lawful permanent resident status. DOMA, however, prohibits the federal government from recognizing same-sex marriages. As a result, US citizens and permanent residents who are lawfully married to spouses of the same sex may not sponsor their spouses for immigration benefits. The new suit alleges that such a result is a violation of the Constitution's equal protection clause.
Global Entry Expanded to Four Additional US Airports. Four additional airports in the United States — those in St. Paul, MN; Charlotte, NC; Phoenix, AZ; and Denver, CO — will begin participating in the Department of Homeland Security's (DHS) Global Entry program for trusted travelers on or before September 22, 2012, according to a new notice posted by US Customs and Border Protection (CBP) in the Federal Register. The Global Entry program allows pre-approved travelers to skip immigration and customs lines, instead seeking admission to the United States through automated kiosks. At the present time, US citizens and permanent residents, as well as nationals of the Netherlands and Mexico, are eligible to enroll in Global Entry.
H-1B Application Cycle Opens. In April, US Citizenship and Immigration Services (USCIS) began accepting applications from US employers sponsoring high-skilled foreign nationals for entry to the United States during Fiscal Year (FY) 2013 on H-1B visas. Through the H-1B visa program, the United States grants up to 65,000 temporary visas each year (6,800 of which are set aside for nationals of Singapore and Chile under special trade agreements) to individuals who have at least a bachelor's degree and are coming to work in the United States in "specialty occupations." An additional 20,000 visas are available for foreign nationals who hold advanced degrees from US universities.
USCIS Issues New Proposed Rule for Hardship Waivers. US Citizenship and Immigration Services (USCIS) has issued a new proposed rule that would amend the process for spouses, parents, and children of US citizens to file "hardship waivers" as part of their applications for permanent residence. The waivers are commonly required when an individual resides in the United States unlawfully and then leaves the country in order to apply for a permanent resident visa at a US consulate abroad. Under the current rule, applicants cannot file the waivers until they have already left the United States and submitted their applications for visas at the US consulates. The new rule, which is intended to minimize family separation, will allow applicants to file hardship waivers from within the United States.
State and Local Policy Beat in Brief
Fifth Circuit Affirms Ruling Striking Down Farmers Branch Rental Ordinance. A three-judge panel of the US Court of Appeals for the Fifth Circuit affirmed a lower court's decision holding that a city immigration ordinance in Farmers Branch, TX was unconstitutional. The ordinance, which the city adopted in January 2008, required all adults living in rental housing in Farmers Branch to obtain occupancy licenses and provided that the city would deny an occupancy license to unauthorized immigrants. In its recent decision, the court of appeals agreed with the lower district court that the ordinance was preempted by federal law. The city has announced that they will seek a review of the decision by the entire Fifth Circuit.
Mississippi Immigration Enforcement Bill Dies in the Senate. A controversial immigration enforcement bill in Mississippi that passed the state house and was backed by Governor Phil Bryant died in the state senate. The bill, which was loosely modeled after Arizona's 2010 law SB 1070, required enforcement officers to determine the immigration status of anyone stopped by the police whenever they had "reasonable suspicion" to believe that the person was an unauthorized immigrant. In addition, the bill stated that all arrested individuals would have their immigration status confirmed before they were released from custody. It also required public schools to report on the immigration status of enrolled students, and it prohibited unauthorized immigrants from receiving driver's licenses or business licenses.
News Report Find Tens of Thousands of Alabama Employers Have Failed to Register for E-Verify. Tens of thousands of businesses in Alabama have potentially failed to enroll in the federal government's E-Verify program, despite the fact that a law passed last June requires all employers in the state to do so by April 1, 2012, according to a report issued by the Associated Press. E-Verify is an online program that allows employers to check whether their new employees are authorized to work by screening employees' biographic information against federal immigration and social security databases. According to the report, USCIS has reported that just 18,137 businesses from Alabama have enrolled in E-Verify, while the state has upwards of 85,000 employers.
Massachusetts District Court Judge Finds Gun Ban for Immigrants Unconstitutional. A federal district court judge in Boston, MA has found that a state law prohibiting lawful permanent residents from owning firearms is unconstitutional. The court held that the second amendment right to bear arms applies to lawful permanent residents as it does to US citizens. In its ruling, however, the court did not address whether or not the second amendment applies to noncitizens who are not lawful permanent residents.
Georgia Lawmakers Drop Provision in Bill that Would Bar Unauthorized Immigrants from Enrolling in State Colleges. State legislators in Georgia have dropped from a bill a provision that would have barred unauthorized immigrants from attending public colleges and universities in the state. The measure would have followed a 2010 decision by the state's Board of Regents that bars unauthorized immigrants from attending five of the most selective colleges and universities in Georgia: University of Georgia, Georgia Tech, Georgia State University, Georgia Health Sciences University, and Georgia College and State University. Although the measure passed the Georgia state senate in March, supporters say that they were forced to drop the provision because there was not enough support for it in the state house.
Florida to Determine Whether Unauthorized Immigrant Will be Allowed to Practice Law. The Florida Supreme Court will soon decide whether unauthorized immigrants who attend law school in Florida and pass the bar examination are eligible to practice as lawyers in the state. The case arose after the Florida Board of Bar Examiners declined to admit Jose Godinez-Samperio to the bar solely because he lacked lawful immigration status. The Board subsequently requested an advisory opinion from the state's highest court.
Originally published on the Migration Information Source (www.migrationinformation.org), a project of the Migration Policy Institute.
Muzaffar Chishti a lawyer, is director of Migration Policy Institute (MPI) office at New York University School of Law. His work focuses on US immigration policy, the intersection of labor and immigration law, civil liberties, and immigrant integration.
Claire Bergeron is a paralegal at the National Immigrant Justice Center in Chicago. In 2007 and 2008 she worked as an intern and research assistant at the nonpartisan Migration Policy Institute (MPI), where she co-authored reports on Social Security letters and the USCIS naturalization backlog. A graduate of Northwestern University, Ms. Bergeron obtained her BA cum laude in legal studies and anthropology in June 2007. While at Northwestern, Ms. Bergeron wrote two theses on US immigration, earning the Legal Studies Department ?thesis of the distinction? award in 2006 for her research on due process standards for detained immigrants. Ms. Bergeron is a member of the Phi Beta Kappa honor society.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.