A Legal Case for Ending Mandatory Detention


As we ramp up our national efforts to reduce the incarceration rate in the US and curb the detention of immigrants, I've been learning about many inspiring groups around the country. I had the opportunity to speak with one- Grisel Ruiz from the Immigrant Legal Resource Center about their efforts. 

Tell us about your work:

At the Immigrant Legal Resource Center (ILRC) I work to ensure that government at the local, state, and federal level enacts informed policies that are just and fair for all individuals regardless of immigration status.  Prior to joining the ILRC I co-founded “Know Your Rights” programs at two local county jails housing Immigration and Customs Enforcement (ICE) detainees and defended noncitizens in removal proceedings in immigration court.  

What should people know about immigrant detention? 

People should know that in 2011 alone, a record-breaking 429,000 men, women and children were detained in civil detention nationwide, in over 250 facilities at a daily capacity of 33,400 beds.[1]  This includes detention centers in the Bay Area, with people hailing from cities locally to all parts of the United States.  Indeed, detained immigrants may be transferred to any part of the country, regardless of the location of their friends and families. 

People should know that county jails are meant to be short-term facilities yet some immigrants remain detained and fighting their cases for years.  In one case, an underlying misdemeanor conviction for which the individual served only six months, resulted in immigration detention of seven years.  Moreover, while some facilities treat people humanely, others do not and there have been over 100[2] reported deaths in immigration detention since 2003, the causes of which have varied but have included inadequate medical care, spurring lawsuits nationwide.  Conditions are so bad in certain facilities that it is not uncommon for people to give up on their cases rather than spend more time detained.   

Finally, people should realize that immigration detention is a huge and growing profit generator for the private prison industry.  Two companies in particular, the GEO Group, Inc. and the CCA, spent over 26 million dollars combined in the last ten years lobbying DC for more immigration detention beds.[3]  The Federal Government responded, spending $2 billion in ICE detention operations in 2012 and more than doubling immigration detention beds in the past ten years. 

What is a common misconception about immigrant detention that you'd like to debunk?

A common misconception has to do with the nature of immigration detention. Immigration proceedings are civil in nature.  What this means is that immigration proceedings are triggered by civil codes and not by criminal codes.  Indeed, many people are in removal proceedings on the sole basis that they do not have lawful status in this country.  A recent story garnered national attention when a woman, later pegged the “tamale lady,” was arrested for charges related to her selling tamales outside of a Sacramento store.  The criminal charges were later dropped but the tamale lady was detained by ICE, placed in removal proceedings, and her two US Citizen children placed in foster care.[4]  Stories such as this one are common and include people with all immigration statuses, including lawful permanent residents.  Regardless, the effects are the same - children are placed in foster care, families struggle financially while sole wage earners are detained, and everyone is worse off. 

What’s consistently shocking to you in doing this work?

One thing that regularly shocks me is the lack of access to legal assistance.  In immigration proceedings, one has a right to an attorney but not at the government’s expense.  What this means is that unlike the criminal system, there is no public defender in immigration proceedings.  One fundamental difference between the criminal system and the civil immigration system is that while both may take away an individual’s liberty, only the criminal system ensures that all have an attorney.  However, similar rights are at stake.  In the criminal context, people face deprivation of liberty through jail and may even face death.  In the immigration context, people face being permanently deprived access to the United States, which for some means permanent separation from their families.  For those who fear return to their home country, a removal order is commensurate to a death sentence. 

Attorneys are crucial to ensuring that each person receives their fair day in court.  While some nonprofits offer free legal services, the need far exceeds available resources.  Some reports say that up to 86% of people go without an attorney.[5]  These statistics are staggering when one considers that many of those in proceedings are uneducated, have language barriers, and are facing what federal judges have stated is the second most complicated area of law, second only to tax law.   

If you could change one thing, what would it be?

During a time when state legislation has called for reduced prison overcrowding through realignment, civil immigration detention continues to grow.  If I could change one thing, it would be to eradicate immigration detention, or at the very least mandatory detention.  Mandatory detention, a legal provision enacted in 1988, made certain people categorically ineligible for bond regardless of their family ties in the US, even if the judge believed that they should be released under a bond.  Misdemeanor crimes as petty as shoplifting or petty drug-possession can trigger mandatory detention, even if the person has lawful status and even if the offense occurred decades years ago.  Thus, someone could be subject to immigration mandatory detention for an offense that never triggered any jail time in their criminal case.  Not only is it a waste of government resources to detain these people, but it is a strain on detainees and their families when cases lag for months or even years. 

What can people to do help? 

People can educate themselves more about these issues and take action to ask for better policies surrounding immigration enforcement and detention.

People can obtain more information about immigration detention at the following websites: http://www.detentionwatchnetwork.org/ or http://www.aclu.org/immigrants-rights/immigration-detention.

People should also call their local elected officials and California Governor Brown’s office to advocate for the disentanglement of local and state governments from federal immigration enforcement policies and practices, which will ultimately lead to a reduction in detention.  People can obtain more information here: http://www.caimmigrant.org/enforcement.html

[1] http://www.aclu.org/immigrants-rights/detention

[2] http://www.aclu.org/immigrants-rights/detention

[3] http://www.huffingtonpost.com/2012/06/07/private-prisons-immigration-federal-law-enforcement_n_1569219.html

[5] http://www.firrp.org/