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Michelle Brané

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Let's Not Give up on Immigration Detention Reform Quite Yet

Posted: 10/09/11 10:14 AM ET

It has been two years since the director of Immigration and Customs Enforcement (ICE) John Morton announced plans for significant reform of ICE's immigration detention system, moving from a penal model towards civil detention more appropriate for administrative immigration detainees. The announcement was welcomed by the Women's Refugee Commission and advocates around the country, who had been saying for years that ICE's system was archaic, inefficient and cruel.

Advocating on behalf of migrants--including asylum seekers, families, parents and students caught up in our country's immigration system--over the past two years has been challenging. And in many ways, we have seen good policy changes. The administration took a good hard look at its immigration detention system and issued a public report that laid out what is wrong and what needs to be changed. It has taken steps to create a system of accountability by creating a new Detention Service Manager position (DSM) and a detainee locator system, and has worked with NGOs to develop stronger standards. It has also developed a risk assessment tool that should create some consistency and fairness in decisions to detain and perhaps most significantly the administration has issued a series of memos and directives on prosecutorial discretion () allowing and even directing staff in the field to use discretion in enforcing immigration laws and using government resources. Yet the refrain in the field, from grassroots advocates and others, is that we have accomplished nothing. Sometimes I agree. So why are we all so frustrated?

In the past several months my staff and I have visited a number of detention facilities. We came back from each visit extremely disappointed and disheartened. The reality is that despite efforts at policy change in Washington, not much has changed on the ground. The DSM is not working, and the new standards are not yet in effect and many doubt they ever will be. The old standards, inadequate as they are, are still not being enforced and the risk assessment tool is not expected to go into effect until sometime in 2012. At one facility, ICE officers told us that the Morton discretion memos meant nothing. "Those don't mean anything," he told me. "Nothing is any different. If we can arrest [and detain] you, we will."

All the facilities we visited were, without question, still punitive and penal, with the possible exception of one, which, while nicer than most, was not what we would see as "civil." (Read our blog about the Etowah County Detention Center in Alabama to get an idea of conditions.) According to a report issued by Human Rights First this week, even if ICE implements all its announced plans to open new civil detention facilities, more than 80 percent of immigration detainees will still be detained in prisons or prison-like facilities. Detainees must wear prison uniforms, recreation is almost nonexistent and at more than one facility there was virtually no access to the outdoors, ever. Imagine being locked in a concrete cell, in a concrete building, with no windows and no access to the outdoors, for months and in some cases even years, not because you have been convicted of a crime, but because you crossed a border in order to save your life or protect your family, or because you are accused of having committed a civil infraction. I could barely stand it for the eight hours I spent in the facility interviewing people. Since visiting one facility, we have received letter after letter from detainees begging us to help them and get them food because they are not fed enough.

In every facility we visited we met numerous individuals who should not be detained - even according to the administration's own priorities. We met an asylum seeker who was seven months pregnant with a child conceived through a rape. We met an asylum seeking man who had been sexually assaulted repeatedly while in immigration detention, whose wife had attempted suicide leaving his four children in foster care while ICE continued to detain him. We met women who had to request a doctor's letter in order to receive more than 12 sanitary napkins a month. And we met mothers worried about the safety of their children while they sat in detention.

So it is not surprising that we are frustrated and that many are claiming we have wasted the last two years trying to "negotiate" with an administration that has no intention of changing anything. But this is the wrong approach. The reality is that change is hard. It comes in ebbs and flows, and some days it does seem that we are wasting our time. But we cannot forget that we have made some very important accomplishments, even if there is a long way to go.

We have gotten significant changes in policy, and the administration talks to us--something that seemed revolutionary when it first started two years ago. Failing to acknowledge our accomplishments, however small or insignificant they may seem at times, does a disservices to us all; the policy makers who are trying and who also feel frustration and lack of support; the advocates who are working on these changes around the clock; and the immigrants themselves, who need us to stay focused.

We should be using the progress we have made so far to energize ourselves, the administration and our allies toward finishing the job. We have made progress in some key policy change; now we have the difficult and daunting task of getting it implemented. This is the hard part and the most important part. It requires culture change, it couldn't be done without the policy piece and it requires commitment and courage on the part of the administration and advocates.

So how do you get past the separation between policy and change on the ground? How do you change a culture of punitive methods and dehumanization to build a more efficient and humane system for ensuring that immigrants in proceedings appear for their hearings and court orders? There are several changes in detention policy that could be made immediately and should not be taking years to implement. Immigrants in administrative, civil proceedings should not have to wear prison uniforms. They should have freedom of movement and access to outdoor and indoor recreation. They should have meaningful access to visitation and to legal representation. And most of all they should NOT be detained unless the government can show that detention is necessary for public safety or to avoid flight risk.

In 2007, the Women's Refugee Commission released a report on the abhorrent conditions for families being held in immigration detention. The flurry of press and public opposition, combined with litigation, led to immediate changes at the T. Don Hutto facility, a medium-security prison in Texas. That facility now incorporates all of what I have listed above--plus Internet access (something routinely available at low-security criminal facilities not used for immigration detainees) and there have been no negative repercussions. In fact, not only have conditions improved, but it is an easier facility to manage, with fewer disciplinary issues. I see no reason these improvements can't be put into place for all immigrant detainees immediately.

Until the administration begins to take seriously the mistreatment of immigrants in its custody and the lack of compliance with even the weakest of standards and directs its contractors and employees to treat immigrants in accordance with their status as civil detainees, nothing will change. Training and implementation are essential. Perhaps just as important, the administration cannot let opposition voices cloud its judgment and stall its progress. There has been enough of that already. We cannot allow resistance to change and political opposition be an excuse for not pushing for much-needed improvements in a system that is not only inefficient but also inhumane. The administration needs to push harder and make this a priority.