Silky Shah, Samar, 11 Sep. 2011

In June, Immigration and Customs Enforcement (ICE), released enforcement statistics showing that over 363,000 people were detained during FY 2010 (Oct. 09 – Sept. 10). This is twice the number of people detained in 2006 and about seven times the number of people detained in 1994. The U.S. has the largest immigration detention infrastructure in the world and with ICE’s current plan to expand the number of facilities and their nationwide implementation of the deportation program, Secure Communities, it will continue to grow. While many in the immigrant rights movement are targeting the draconian policies of President Obama, and rightly so, blame for the explosion in immigrant detention and deportations runs deeper, and traces back to both the post-9/11 policies of the Bush administration and the wholesale reform of policy under Clinton, which categorically changed the way immigrants are viewed by the U.S. government. Today, more immigrants are being detained and deported than ever before, and it’s just getting worse.

Over the last two decades a paradigm shift has taken place. Immigration law, once a set of civil administrative rules to regulate population flow – has become part of the enforcement apparatus of a government that functions increasingly as a police state. The politics of fear have changed the whole nature of the immigration system. Detaining people because of their immigration status is a relatively new practice in the U.S., only about 30 years old. And although the substance of immigration policies hasn’t changed much in the last 15 years, their implementation has. The White House and much of the media would like us to believe that the ever growing detention and deportation statistics reflect problems within immigrant communities – that people who are detained and deported are all undocumented and have crossed over the border to commit serious crimes, and that they therefore deserve to be wrenched from their families and communities, imprisoned in abuse-ridden jails without a single hearing, and eventually (often after months or years behind bars) expelled from the country. The truth, however, is not that immigrants are increasingly lawless, but that the methods of enforcing the law are becoming harsher and more arbitrary with every passing year. For example, the immigration system increasingly relies on the criminal justice system (which is itself beset with corruption and racial animus) to function as a dragnet for deportable individuals. Immigrants are often picked up by local police and – whether they end up being charged with a crime or not, whether they have ever been charged with a crime or not — detained while they await the determination of their immigration status. Where immigration violations had typically been a matter of civil law and procedures, in the past 20 years they have steadily been criminalized, under the influence of punitive models more commonly relegated to the flawed justice system. After the 1996 changes to immigration law, any non-citizen can be subject to detention and deportation, including green card holders and immigrants on work visas, not just those without documents.

After 9/11 the entire infrastructure of the immigration system was overhauled, leading to, among other things, the creation of the Department of Homeland Security, which has consistently lacked organization, oversight and general competence since its inception. During this time the Department of Homeland Security also ended the widely practiced policy of “catch and release” at the border and mandated the detention of all non-Mexicans until they could be deported. The policy also encouraged that all Mexican nationals be sent back immediately.

There have also been many attempts to change policy through legislation, including Sensenbrenner’s draconian HR 4437 in 2005, which tried to eliminate the “illegal” immigration population through a series of severe enforcement measures on the border and through employers and states agencies. The bill, which garnered some of the largest protests in U.S. history in response, failed when reaching the Senate. However, Congress did pass legislation to build a 700-mile wall at the border. Two more failed attempts at comprehensive immigration reform took place in 2007 and 2010 when the Obama Administration squashed dreams of relief for immigrants. While these efforts aimed to deal with the “issue” of the nation’s 11 million undocumented people, they never addressed any of the root causes for the current wave of migration, such as the North American Free Trade Agreement (NAFTA) in 1994, which crippled the livelihood of thousands of Mexican workers, or the Central American wars of the late Cold War, which destroyed the economies of many countries. Both of these fueled immigration to the U.S. and both owed in large part to U.S. influence and supportive policies in Latin America. In addition climate change and political upheaval across the world have led to more migration to developing countries, but despite all of this the unemployment rate has been fairly steady in the U.S. since the 1980s, only increasing drastically in the last few years due to the recession.

After the failure of the Sensenbrenner bill in 2006, ICE increasingly used worksite raids to round-up hundreds of immigrants at once. The most famous raid took place in Postville, Iowa in 2008, in which 400 workers were detained and 300 were eventually deported after spending five months in detention. The raids received lots of negative attention and while ICE raids continue today, Bush and the Republicans saw an opportunity to shift the enforcement of immigration laws to local jurisdictions whereas before it had been under the purview of the federal government. The result was the creation of Secure Communities, a deportation program that checks the fingerprints of anyone arrested and runs them through DHS’s immigration database. The program was debuted in 2008 in Houston, Texas, which not coincidentally is also the location of the first private prison, a Corrections Corporation of America (CCA) immigration detention center built in 1984. The governors of Illinois, New York, and Massachusetts recently rejected the program, after which ICE decided to mandate it, in spite of having initially told localities that they could opt out of the program.

The precursors to Secure Communities – both of which remain in force today — were 287g, a program authorizing local police to be immigration enforcers and the Criminal Alien Program, which allows ICE officers to screen immigrants brought to local jails. The 287g program was initially created in 1996 under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA and sister legislation, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), written to address concerns of terrorism after the Oklahoma City bombing, broadly reconfigured the country’s approach to immigration. Several changes to immigration policy happened under the two acts, but the most significant for detention was the expansion of the scope of mandatory detention and the legal category of aggravated felony. Many crimes considered aggravated felonies in the immigration context, are neither aggravated nor felonies in the criminal context. For example shoplifting which would be a misdemeanor in the criminal context can be considered an aggravated felony under immigration law. Under the new law many immigrants are subject to mandatory detention, meaning judicial discretion does not exist for them; they are simply locked up without any hearing to determine whether detention is necessary or proper. To make matters worse, for most subject to mandatory detention the triggering offense is a drug related conviction. Not only are the drug laws themselves notoriously harsh, but immigration law treats drug convictions even more seriously than the criminal system does. The 1996 laws created a merger between the criminal justice and immigration system solidified by programs such as 287g, Secure Communities and the Criminal Alien Program, which today continues to be the number one program by which immigrants are apprehended.

While the number of detention beds rose from 8,500 in 1996 to 16,000 in 1998, the reaction to 9/11 facilitated a massive increase in rounding up immigrants. Amid a spike in hate crimes against Muslim, Arab and South Asian immigrants, there was a proliferation of legal mechanisms and government programs the sole purpose of which were to target immigrants. The implementation of NSEERS or Special Registration, which required men from predominantly Muslim countries to register with the government, resulted in over 13,000 deportations. The Patriot Act, which is often falsely believed to have changed immigration law, expanded the scope of how immigrants are targeted, leading to more surveillance and monitoring. Such surveillance efforts continue to spread in programs like Secure Communities, which uses biometric technology through the FBI’s Next Generation Initiative to track individuals. The culmination of post 9/11 anti-terrorism fervor and immigration policy came when ICE released its strategic plan for 2003-2012 entitled Operation Endgame. The plan inherently connected national security with immigration through the mission to “promote the public safety and national security by ensuring the departure from the United States of all removable aliens through the fair and effective enforcement of the nation’s immigration laws.” Leaving aside the absurdity of the notion that this policy would somehow ensure state security, the supposed goal of deporting all removable aliens is completely unrealistic.

Florence, AZ – Central Arizona Detention Center – CCA Facility
All of this proved to be lucrative for private prison companies, who were almost at the point of bankruptcy in 2000, until Lehman Brothers bailed them out. This famous quote from Cornell Corrections CEO Steve Logan at a meeting with stakeholders continues to resonate today: “It is clear that since September 11 there’s a heightened focus on detention, more people are gonna get caught. So I would say that’s positive…the Federal Business is the best business for us and September 11 is increasing that business.” It’s evident that private companies saw immigration as a profitable business, which subsequently led to lobbying that further reinforced the growth of detention through harsh immigration laws. A recent NPR report revealed that Corrections Corporation of America officials were in the room when Arizona’s “Show Me Your Papers” law SB 1070 was drafted. Private prison lobbying expenditures came out to over $20 million from 1999 through 2009 and today private companies operate around half of the 33,400 immigration detention beds nationally.

Along for the ride is rural America, where small counties see immigration detention expansion as a source of jobs and revenue for the county’s law enforcement agencies. ICE pays on average $122 per day to hold an individual in detention. In the early part of the decade private companies would build facilities on speculation, and revenue for the counties was questionable at best. But with the massive expansion of detention, ICE sees private prisons as the best option for making the detention system more humane, and county governments are taking the bait. As a result most people in detention are held in facilities hundreds of miles from major cities, making it very difficult for family to visit and with little or no access to counsel.

The majority of immigration detention centers are county and state facilities, with no oversight. ICE has yet to codify standards for detention, meaning there are basically no rules to how people are held. This has led to over 120 deaths in detention since 2003, many of which could’ve been prevented with proper medical attention or mental health services. The case of Roberto Martinez Medina is sadly exemplary. Medina, who was held at the Stewart Detention Center in Columbus, GA, was a 39-year-old Mexican national who died of a heart infection after three days of requesting medical attention for a treatable condition. A Washington Post story about the 30 deaths that occurred in detention in 2008 noted that the median age of those who died was just 36 years.

Back in 2009 when DHS came under the new leadership of the Obama administration, ICE announced reforms to the detention system, promising to address concerns over lax oversight and intimating that it would move away from detention towards non-punitive community based supervisory programs. Instead of taking steps towards real reform, in a last ditch effort to manufacture immigration-related accomplishments in the run-up to the 2012 elections, ICE announced plans to build seven new detention facilities this year. ICE claims to want to build “civil” facilities near urban centers in order to reduce the number of transfers to rural communities and to afford more access to counsel. “Civil” has yet to be defined, and ICE has used vague language to market aspects of its new facilities like “softer construction techniques with traditional brick and mortar penal structures” that will supposedly help reduce costs while “promoting the least restrictive detention environments.” One such facility according to ICE is Delaney Hall in Newark, New Jersey, operated by the private prison company, Community Education Centers. The facility located next door to the Essex County Jail is surrounded by barbed wire and upon entering visitors are inundated with self-help signs such as “stop lying” and “admit when you are wrong.” On a recent visit to Delaney Hall, ICE continuously stated, “this is not a jail,” in what seemed to be an attempt to convince themselves as much as the advocates present. Rather than expand less costly alternatives to detention as promised in the 2009 reforms plan, ICE has decided to build “more humane” facilities, an impossible feat as long as there are no enforceable standards. Furthermore, the discussion about reducing reliance on detention overall is not even taking place. The need for facilities to hold immigrants while they determine their status is no longer questioned, the assumption now is that detention is the only option.

While detention wasn’t commonplace 30 years ago, today it has become central to how immigration is negotiated in the U.S., and its expansion fits in to a long history of U.S. policies targeting immigrants. The vilification and exclusion of immigrants seeking work or refuge began with passage of the Chinese Exclusion Act in 1882. Since then the country has periodically led openly racist initiatives targeting immigration and immigrant populations, from Operation Wetback in 1954, which aimed to remove Mexican nationals from the southern border, to the internment of Japanese Americans during World War II, and more recently with Special Registration after 9/11. However, the expansion of detention facilities cannot be addressed without considering the alarming increase in mass incarceration over the last 30 years.

With over 2.3 million people currently in jail or prison, the U.S. incarcerates more people than any other country in the world in total and per capita. The rate of incarceration of African Americans in the U.S. is almost six times higher than it was for Black South Africans during apartheid. While crime rates were falling, prisons were expanding rapidly as a non-solution to the economic, social and political conditions of the time, notably the erosion of welfare. Extreme sentencing reform in the 1990s, such as mandatory minimums and three strikes laws, disproportionately impacted people of color, who make up the majority of people in prisons today. Prisons have increasingly become the American answer to self-created social problems and now the “social problem” of immigration and the necessity to deport large numbers of immigrants each year is dependent on the use of incarceration. With the creation of mandatory detention law criminal sentencing policies and immigration became intrinsically connected. Today, of the estimated 400,000 people who will be detained this year, about 60 percent will be detained because of mandatory detention. This mandate makes it impossible for ICE to reform the abuse- ridden detention system and human rights violations will continue to occur.

On August 18, 2011, the Obama administration announced plans to only target immigrants with criminal convictions and use prosecutorial discretion for “innocent” immigrants. Immigrants across the country were hopeful that Obama was finally taking administrative measures for what he couldn’t get passed in Congress. Words like amnesty were being thrown around, but the sad reality is that the announcement won’t do much. As the immigration system increasingly resembles the criminal justice system and all the inequities and injustices that come with it, it is impossible to take words like “innocent” and “criminal” at face value. Like the social construction of racial categories, these terms are now used as tools to support the dominant regime’s narrative of exclusion. The continued fixation on punishment rather than addressing the root causes of migration will only further destroy the democratic ideals by which the U.S. is governed, and right now the direction we’re going in isn’t promising.