Among other punitive provisions, these laws call for the mandatory detention of immigrants—including bona fide asylum seekers—who lack adequate documentation. Over 20,000 people are now being held on any given day in facilities around the country. Among them are children, or unaccompanied minors, as they are officially known. The Immigration and Naturalization Service apprehends approximately 5,000 minors annually. They come here for a variety of reasons: to join family members, or because they have been neglected or abused, or to earn money to send home. The more fortunate ones are held in privately run shelter facilities, where they receive adequate care and visits from legal representatives. But a quarter are placed in state-run secure facilities with juveniles who are being held on criminal charges. Not surprisingly, the detention of unaccompanied minors has come under sharp criticism from groups like Human Rights Watch, which argue that alternatives like foster care should be far more widely used in such situations instead of detention, which can result in seriously damaging experiences.
Whether for children or adults, the bishops are thus calling for the repeal of the laws’ mandatory detention provisions and the development of alternatives to detention. A few months before the bishops met, in fact, the Catholic Legal Immigration Network Inc. (Clinic)—a subsidiary of the U.S. Catholic Conference—issued a report that addressed the issue. Called The Needless Detention of Immigrants in the United States, it takes the I.N.S. to task for what it terms its “unconscionable failure” to develop alternatives that would both safeguard the public and prevent immigrants from absconding while awaiting the outcome of their immigration court cases. And models for such alternatives do exist. The I.N.S., however, has been reluctant to employ them on the scale needed in view of the ever-rising numbers of detainees.
Because of the 1996 laws, the number of detained immigrants has tripled. So rapidly have their numbers risen that the I.N.S. is unable to house them all in its own facilities or even in contract detention centers operated by for-profit companies like the Corrections Corporation of America and the Wackenhut Corporation. As a result, 60 percent are locked up in city and county jails where they are frequently subjected to poor living conditions, overseen by guards who may speak only English, and far from family members and attorneys who might be able to help them. For many, therefore—as the bishops observe—basic rights are indeed undermined.
The pressing need to make greater use of alternatives to detention was one of the themes explored at the fourth annual conference of the Detention Watch Network, a coalition of immigration lawyers, religious and other advocates that met in suburban Washington soon after the bishops’ meeting concluded. One focus centered around lifers, or indefinite detainees. These are immigrants who, having committed crimes here and having served their sentences in American prisons, are neither deported nor granted their freedom. Instead, they are transferred to detention centers where they exist in a limbo-like situation. They cannot be deported either because the United States does not have diplomatic relations with their governments or because their governments will not accept them back. Cuba, Iraq and Iran are examples of such countries.
Although it has done reviews of the status of “Mariel” Cubans for years, only recently has the I.N.S. begun a six-monthly review process for other indefinite detainees, and a few have been released into programs. One, operated by Catholic Charities in New Orleans, has accepted two dozen lifers since it began in 1999. There they receive various forms of assistance, including housing, help in finding jobs and English lessons. The program’s director, Kathleen Harrison, said at the conference that only one of the lifers accepted into the program had to be re-incarcerated for a subsequent offense.
Another successful model aimed not at lifers, but at asylum seekers, was developed by the Lutheran Immigration and Refugee Service. During the spring of 1999, the I.N.S. contacted the Lutheran agency in what Matthew Wilch, director there of asylum and immigration concerns, described at the same conference as a surprise telephone call. The I.N.S. was about to bring nine Chinese asylum seekers from detention on Guam to an isolated location in Ullin, Ill. The good news, as Mr. Wilch put it, was that the I.N.S. contacted them at all. The bad news was that the I.N.S. merely wanted the agency’s help in assisting the Chinese with the asylum applications process—holding them all the while in a locked facility.
“We told the I.N.S.,” Mr. Wilch said, “that our assistance would have to lead to their agreeing to an alternative to detention for the Chinese in their custody.” A group of attorneys from Clinic, with which the Lutheran agency has a working relationship in immigration matters, provided legal representation for the Chinese who lacked it. Then it was discovered that some of the asylum seekers were already being represented—but by lawyers employed by so-called snake heads who work with crime syndicates that smuggle Chinese into the United States. “At that point,” Mr. Wilch said, “the I.N.S. denied all our requests” on the grounds that it wanted to keep the immigrants in detention in order to protect them from the snake heads. For him and other advocates, this denial amounted to punishing the immigrants because they were victims of the snake heads. It was only after media coverage—an article in The Washington Post, together with a letter to the editor by the president of the Lutheran agency—that the I.N.S. relented and agreed to release the detained Chinese to shelters, where they received a variety of supportive services. For Mr. Wilch, the I.N.S.’s barriers to achieving this reasonable goal were a reflection of what he referred to as the “4 D’s” of I.N.S. policy: detect, detain, deter, and deport. These 4 D’s, he observed, are rooted deep in I.N.S. culture.
A third example of alternatives to detention is a pilot program that was initiated by the I.N.S. itself in 1997 as a three-year demonstration project involving three groups: asylum seekers, lifers and undocumented workers arrested at work sites. Developed in conjunction with the non-profit Vera Institute of Justice in New York City, it was given the name Appearance Assistance Program; the goal, as the name suggests, was to test the viability of community supervision for noncitizens in removal proceedings, to see whether they would appear for their immigration court hearings while awaiting resolution of their cases. The project provided intensive supervision for people detained in local for-profit contract facilities who were released into the program.
A Vera staff member present at the conference spoke of the program’s impressive success rate: over 90 percent of participants did attend their required immigration hearings. Half eventually won the right to remain in the country, a circumstance suggesting that they need not have been detained in the first place. Given its success, the I.N.S. plans to establish three more sites for the Appearance Assistance Program in other parts of the country. In its final evaluation report, the Vera institute goes so far as to recommend that the I.N.S. “move toward a nationwide supervision program.” But in view of the service’s longstanding reluctance to consider alternatives to detention on any but the smallest scale, one doubts that a nationwide endeavor will be undertaken any time in the foreseeable future.
The Vera program, moreover, was cost effective: $12 a day in contrast to $61 a day for detention. Advocates accordingly wonder why other programs of proven effectiveness, like the one conducted by Catholic Charities in New Orleans, could not receive federal funding. But far from moving that way, the dynamic seems to be in the opposite direction. As the Clinic report notes, a successful federally funded program to resettle “Mariel” Cubans who had been released from detention into a program run by the Migration and Refugee Service of the U.S. Catholic Conference, was actually de-funded in 1999 after being in operation for a dozen years.
A principal author of the Clinic report, Donald Kerwin—an attorney who is Clinic’s chief operating officer—believes that besides the need for far greater utilization of alternatives, there is an even greater need to roll back the number of beds currently in use for immigrants in detention. “Once beds exist,” he said, “they’re going to be filled by I.N.S. directors who know they have them.” Reducing the number of beds, though, will be all the more difficult because the federal administration has requested $79 million in funds for a thousand more. “And yet,” Mr. Kerwin observed, “if just a fifth of that amount were used for alternatives to detention, many immigrants could be released from secure facilities who don’t need to be there.” He made particular reference to asylum seekers who have passed the credible fear test regarding the likelihood of persecution were they to be returned to their own countries. “But often,” he added, “the I.N.S. won’t release them until they are actually granted asylum, at the end of the very day they receive it.”
Also working against alternatives is the fact that the creation of more bed space means financial windfalls for the numerous vested interests that stand to profit from the increased use of detention facilities and county jails with which the I.N.S. enters into contractual agreements. Within the facilities themselves, Mr. Kerwin noted that sweetheart deals with phone companies and other service providers are common. Members of Congress, too, tend to look favorably on new facilities because these can provide more jobs in their districts.
One of the few bright spots in the overall detention picture emerged this past November. At that time, responding to pressure over a period of five years from the American Bar Association and other groups, the I.N.S. agreed to implement a set of three dozen standards pertaining to the treatment of detained immigrants. Among the most important are access to legal counsel—a matter of great significance, because 90 percent of detainees have no legal representation at all. And attorneys for the relatively few that do have representation frequently encounter difficulties meeting with their clients—sometimes even being barred from visits.
Writing in a recent issue of The National Law Journal, for example, Elizabeth Amon noted that although the American Bar Association has created a program to encourage and train attorneys to donate their time to immigration cases, lawyers have encountered daunting obstacles in making contact with clients. She cites the example of an attorney at a Texas firm who volunteered to represent two Cubans held at a federal prison. Although he had arranged for an interview in advance, he was refused entry when he arrived. The Cubans, as a result, never had representation. Under the new standards, however, attorneys are to be granted access seven days a week, in a private room where conversations cannot be overheard. Other significant standards include permission for nongovernmental agencies to make presentations to groups of detainees concerning their rights—a subject about which many immigrants are largely ignorant.
Also important is the standard regarding access to pastoral services. Previously, chaplains have entered detention centers as volunteers only, with no authority. Now, however, the I.N.S. is to appoint chaplains who, as fully accredited staff members, will be able to enter all parts of a facility—including administrative segregation where (very inappropriately) people at risk for suicide are placed. Space for private counseling must also be provided, along with a designated area for religious observances. The right of immigrants to practice their religion can be the basis of significant spiritual support during long periods of uncertainty and fear.
In announcing the standards, the I.N.S. commissioner, Doris Meissner, said that their purpose is to ensure “safe, secure and humane conditions...for all aliens in I.N.S. custody,” wherever they are—in facilities run by the I.N.S. itself, in for-profit facilities or in county jails. But while the standards do represent a step forward in terms of providing uniform rules governing the treatment of immigrants in detention, they are not federal regulations. This means that they are not enforceable. Even if they are observed with a reasonable degree of probity, moreover, the central issue still remains: too many immigrants are held in detention who should not be there. And immigration detention is, after all, just another term for imprisonment.