Immigration detention is the policy of (supposedly, temporarily) holding people who are suspected of visa violations or illegal entry into the United States, as well as those subject to deportation and removal. This is done until a decision is made by an immigration judge to grant the requested visa and release them into the community, or to send them back to the country from which they came.
The United States government holds tens of thousands of immigrants in detention under the control of Customs and Border Protection (CBP) and the Immigration and Customs Enforcement (ICE).
Several human rights organizations, including Amnesty International and the American Civil Liberties Union (ACLU) have cited concerns with ICE’s management of these detention centers. There have been reports of human rights abuses and inadequate or unprofessional medical care in these detention facilities. Such reports have also publicized the death of several immigrants in detention and have accused ICE of covering up this information.
What is Mandatory Detention?
Mandatory immigrant detention is the requirement that certain categories of aliens remain detained throughout the entirety of their immigration proceedings. In 1996, lawmakers passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which exponentially increased the use of mandatory detention, with limited opportunities for judicial review and without the opportunity to seek bond.
Under IIRIRA, all noncitizens — including lawful permanent residents — are subject to mandatory detention and placed in expedited removal proceedings if they have been convicted of certain felonies: any crime of violence, theft, or burglary for which the term of imprisonment is at least one year, as well as illegal trafficking in drugs or firearms.
After being picked up by ICE, an individual can be released on bond if they are not deemed a threat to national security. However, if an individual is already in the U.S., they will be put in mandatory detention if suspected of being a threat to national security or charged with two crimes of “moral turpitude,” an “aggravated felony,” a firearms offense, or a controlled substance violation.
Many are put in mandatory detention due to minor criminal history, including, non-violent misdemeanor convictions without any jail sentence. Thus, crimes that did not assign jail time to the individual may nevertheless subject them to mandatory detention. The ACLU has condemned this practice, saying that it violates due process.
What Are Detention Facilities Like?
Detention facilities are unpleasant and can be dangerous. During the 2019 swell in migrant arrivals, many facilities held inmates in numbers far exceeding their planned capacities. The number of arriving immigrants at the U.S.–Mexico border increased greatly over prior years. The number of migrants held in custody surged to 13,400 in March 2019. In May and June 2019, between 14,000 and 18,000 people were held by CBP every night. Customs and Border Protection Commissioner McAleenan stated that, “A high number for us is 4,000. A crisis level is 6,000. 13,000 is unprecedented.”
There have been frequent complaints against detention facilities, including frigid temperatures, mildew and meals that leave detainees hungry. In addition, individuals in immigration detention centers are often placed in custody with violent offenders, even though undocumented immigration is a civil, not criminal, matter.
Are There Health Risks in Detention?
CBP facilities have been the sites of communicable infections including chicken pox, scabies, influenza, and lice.
More ominously, as of 2010 there were 107 deaths of immigrants in detention since 2003, when ICE was created. ICE has been accused of covering up many of these deaths, like that of an immigrant from Guinea who was placed in isolation for 13 hours after suffering from a skull fracture and died in custody. Another immigrant who died in ICE detention was Hiu Lui Ng, whose fractured spine and cancer had gone undiagnosed. He had told immigration officials officials that he had these medical problems but they accused him of lying about his situation and denied him medical care.
Solitary confinement is a common method used by ICE in detention centers. Officials are only required to write a report to the ICE headquarters only if detainees have been in solitary confinement for a 14-day period. However, cases of solitary confinement may be longer than 14 days, extending to 30, or even 60 days in extreme cases.
How Many People Are in Detention?
During fiscal year 2018, 396,448 people were booked into ICE custody. A daily average of 42,188 aliens were held by ICE in that year. According to the Global Detention Project, the United States possesses the largest immigration detention system in the world.
Between 2017 and 2018, ICE increased the number of detained unaccompanied minors nearly sixfold, from an average of 2,400 each night in 2017 to 12,800 in 2018. In May 2021, an unprecedented surge of unaccompanied minors at the US-Mexico border reached more than 21,000 children.
There have been many cases where U.S. citizens have been held in immigration detention. Detainers were mistakenly placed on 834 U.S. citizens and 28,489 permanent residents between 2008 and 2012. In one case, a U.S. citizen was improperly held in immigration detention for more than three years. ICE has actually deported U.S. citizens to other countries. One notorious case involved a Puerto-Rico born (and therefore U.S. citizen) man deported to Mexico. Another case involved the deportation of a 14-year-old girl, born in Dallas, Texas, and therefore a U.S. citizen, to Colombia.
What Are the Alternatives to Detention?
U.S. Immigration and Customs Enforcement (ICE) have programs that are less restrictive alternatives to detention. Detention alternatives available to qualified aliens are:
- Release on Order of Recognizance (ROR) – If someone is in the midst of immigration proceedings they may be released from detention under certain restrictions, such as reporting regularly to detention authorities, appearing at all immigration proceedings, and staying clear of all criminal activity. An ROR is used when an alien does not have the resources to afford a bond.
- Appearance Bond – A bond is a contractual agreement between the person posting the bond and ICE. The purpose of the bond is to release the alien from detention and provide ICE with a way to ensure the alien will return for a hearing, interview or deportation. A bond is more restrictive than ROR and is used to guarantee the person’s appearance at immigration proceedings. If the person fails to appear at a proceeding, their bond will be forfeited.
- Electronic Monitoring Devices (EMD) – These devices are ankle bracelets worn by the alien so that immigration authorities can keep track of where they are, and to ensure compliance with court appearances and removal orders.
- Intensive Supervision Appearance Program (ISAP) – In this program, case specialists are assigned to aliens using monitoring bracelets, home and work visits, and telephone check-ins. To be eligible for participation in ISAP, an alien must be an adult with a confirmed identity who does not pose a threat to the community or national security. Besides volunteering for the program, the person must:
- Be waiting for impending immigration court proceedings
- Be awaiting removal from the United States
- Reside in an area covered by ISAP
Do I Need a Lawyer?
If you or someone you know was detained, an experienced immigration attorney can determine if an alternative form of detention is available. An immigration attorney, especially an attorney with experience in immigration detention, can help you with all the detailed procedures of detainment.
