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For Immigrants, Is the United States a Safe Haven or Prison Ward?

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LAMAR SMITH
AP

Names can be misleading, and that is certainly the case with representative Lamar Smith's (R-Texas) new disturbing piece of legislation, the Keep Our Communities Safe Act. The bill, H.R. 1932, purports to make Americans safer by authorizing the indefinite detention of individuals who have been ordered to leave, but who cannot be deported either because they are stateless or because the United States does not have diplomatic relations with their country of origin (for example, Cuba and Iran). It also authorizes the prolonged detention of individuals whose cases are pending, which includes those with valid asylum claims and victims of human trafficking and torture, and denies them an individualized bond hearing before an immigration judge.

The irony of this legislation is that the "protections" that representative Smith claims are necessary for America's safety already exist in the law. Even after U.S. Supreme Court decisions such as Zadvydas v. Davis and Clark v. Martinez -- which held that the government does not have the authority to hold someone indefinitely when removal is not possible -- the U.S. government issued regulations that allow indefinite detention. Such detention is allowed when a person has a highly contagious disease, is a flight risk or is a national security concern. For those with pending immigration cases, if the judge feels that the applicant poses a flight risk or is a danger to society, the judge may deny the bond.

The reality is that immigrant detention costs taxpayers billions of dollars. The approximate cost of detaining an immigrant is a staggering $45,000 per year, which adds up quickly. In 2009, 380,000 individuals were subject to detention. What our country's immigration detention system needs is a risk assessment tool with which officials can effectively determine which detainees pose a threat to our safety and which detainees should be released -- so that they may obtain jobs, support their families and report to U.S. Immigration and Customs Enforcement at regular intervals. Some alternatives to detention programs lower the cost to approximately $4,000 per year -- that's a 92 percent cost reduction.

Concerns about existing law and the cost of detention aside, the fact that indefinite detention violates international and human rights standards is unquestionable. The Constitution guarantees due process to all people in this country, not just U.S. citizens. The writ of habeas corpus -- the right of every prisoner to challenge the basis of his or her incarceration or detention in court before a judge -- is a necessary check on the awesome power of the government to detain. With H.R. 1932, an individual's liberty is at stake, and it is not something that should be taken lightly. Furthermore, the proposed legislation requires habeas actions to be filed in the D.C. Circuit, a court that is already overwhelmed with similar petitions and would make judicial review of detention anything but prompt.

This bill authorizes prolonged detention for those who applied for relief such as a trafficking visa or asylum, which could include: a journalist who has been persecuted because he spoke out against the government; a woman trafficked into the country as a sex worker; a victim of severe domestic violence or torture; or, a legal permanent resident who has lived here for 20 years and has children who are U.S. citizens, but was arrested for a non-violent felony.

The Women's Refugee Commission regularly encounters cases of asylum seekers and other non-dangerous individuals who are unnecessarily detained for prolonged periods and who would have no options for release if their right to habeas corpus is removed. Take the case of Stehsy Aguilera, for example. She and her three children, ages 3, 5 and 12, arrived in the United States through an official port of entry and requested asylum the moment they arrived. Despite the fact that Stehsy's mother was in the U.S. and willing to give her a place to live, Stehsy and her children were detained for over two years and were not released until the Women's Refugee Commission intervened on their behalf. Stehsy and her children had a pending asylum case and followed all of the rules and procedures required of them. Yet, Stehsy's children were locked in a facility for two full years; they were unable to attend a normal school and were not reunited with their family here in the United States. Stehsy could not work and support her family. How can we say that this country offers those fleeing persecution the opportunity to seek protection here if we place insurmountable barriers in their way?

This bill also affects those individuals whose applications for relief have been denied. In this scenario, many are willing to accept deportation, as long as they feel that their case was given a fair shot. However, if they fall into the group of stateless individuals or those who are otherwise unable to be deported, they are stuck in a devastating limbo of indefinite detention -- where they are neither free in the United States nor in their home country.

The Women's Refugee Commission calls on Congress to reject representative Smith's proposal, because it violates the Constitution and due process. The government should appropriately fund the Executive Office of Immigration Review so that cases can proceed through the system at a reasonable pace and immigrants don't languish in prisons at enormous taxpayer expense.

Additionally, we need to develop a risk assessment tool that can be used to determine who needs to be detained and who is not a flight risk or a danger to society, and may be safely released. By taking these necessary steps, we can maintain strong standards and rule of law, without excessive restrictions on liberty. That's how we will make this country a place of safety and security.

Learn more about our work advocating for alternatives to immigration detention.

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