THE BLOG
09/14/2009 05:12 am ET Updated May 25, 2011

America's Broken Immigration System

While attending the North American summit with leaders of Mexico and Canada, President Obama stated that no comprehensive immigration legislation would occur before 2010, thus predictably ensuring a commitment to the highly ineffective, unjust and draconian policies of the U.S. immigration system that needlessly detains immigrants as scapegoats to appease unfounded national security concerns.

With the pressing financial crisis and health care reform dominating the President's attention, Obama pledges a sincere attempt to eventually overhaul the system allowing a "pathway to citizenship for millions of illegal immigrants" in a way that "avoids tensions with Mexico" while acknowledging the process "is going to be difficult."

Perhaps impossible might be more accurate considering President Bush's attempts at immigration reform, which were surprisingly progressive and pragmatic, failed twice. Even Senator John McCain was forced to renege his immigration policy to win paranoid voters terrified by an over exaggerated threat of the brown, illegal immigrant menace.

Individuals such as former Republican Congressman Tom Tancredo bartered fear mongering for votes, stating that illegal immigrants "need to be found before it is too late. They're coming here to kill you, and you, and me, and my grandchildren." CNN's Lou Dobbs, whose credibility is forever nullified by his advocacy of "The Birthers," routinely terrifies middle class America about the immigrant threat with specials such as "Exporting America," "Broken Borders," and "War on the Middle Class."

Similarly, the Democrats are culpable for feeding the hysteria by enacting the brutal Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 under President Clinton. IIRIRA requires mandatory detention of immigrants and lawful permanent residents with criminal convictions throughout their immigration proceeding, despite the fact that most of these individuals have minor offenses, such as drug possession, and are neither major safety threats nor flight risks.

As a result, the federal government now holds more than 32,000 detainees, which is nearly five times the number of detainees in 1994. Nearly 19,000 of these detainees have no criminal records, over half do not have attorneys, and many have been detained for more than a year, despite the US Supreme Court ruling in Zadvydas v. Davis that ICE ("US Immigration Customs and Enforcement") has 6 months to release or deport immigrants after their case is decided.

The budget for detaining immigrants has nearly doubled costing taxpayers $1.7 billion. This statistic should factor into the next, right wing tirade when deciding whom to properly blame for burdening the economy and hurting the middle class.

Echoing the sentiments of most immigration experts, Kevin Johnson, Dean of UC Davis School of Law and author of Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws, concludes the current system is "broken." Johnson told me the key question for President Obama is "how to come up with a legally enforceable system of detention in which there is checks and balances. The administration has refused to promulgate an enforceable rule or regulation [for immigration detention]."

In an attempt to repair the innumerable abuses, as well as ensure appropriate oversight and accountability, Obama's administration recently announced it will transform the current immigration detention system, inelegantly comprised of private prisons and local jails, into an oxymoronic "truly civil detention system." As an initial measure, ICE announced it will replace private contractors with federal employees for appropriate oversight of major detention centers and will stop holding children in Texas' private, Corrections Corporation of America ("CCA") T. Don Hutto Detention Center.

The President of the Center, Damon Hininger, reacted to the announcement by concisely summarizing the overall result of this measure: "In some respects there may not have been much of a change."

One would assume the U.S. government had learned about the dangers of outsourcing core public functions to private actors from various debacles in Iraq involving Blackwater and Halliburton. However, our tone deaf reliance on the private sectors to perform public functions without an enforceable system of regulations has produced an abusive system depriving individuals of basic rights. As a result of the current immigration policy, overpopulated, remote detention centers house immigrants who are denied meaningful contact with their lawyers, access to legal resources to fight their case, proper medical care, and contact with family members. Yet, thankfully for the shareholders of CCA, the company expects a 20-year contract with ICE to detain individuals in a new facility. In a hemorrhaging economy, they also fortuitously experienced a 5% revenue growth.

Immigrant detainees are not so lucky. Currently, most detainees are rarely afforded an opportunity for an individualized bond hearing, where a neutral judge can assess the constitutionality and necessity for their detention. As a result, they languish in remote detention centers with atrocious living standards. Furthermore, nearly 90% of detainees cannot afford an attorney due to extreme poverty. Thankfully, non-profit legal organizations such as The Florence Project of Arizona provide free legal services to individuals detained by ICE.

Despite the overwhelming evidence and recommendations of immigration reform advocates, John Morton, the head the Immigration and Customs Enforcement agency, pledged a commitment to large-scale detentions but added, "it needs to be done thoughtfully and humanely."

As an Attorney with experience in assisting detained immigrants, I cannot fathom how the current system of mandatory detention is remotely "humane or thoughtful." When I was a law school student interning at the Immigration Clinic of UC Davis King Hall School of Law, we fought for a bond hearing and subsequent release of a 60-year-old Mexican American grandfather detained for nearly three years on a simple meth possession. He existed in a hellish, legal purgatory. Exasperated at his nebulous legal status and languishing in a detention center, he begged us to force the government to simply make up their mind - either deport him or release him.

Holly Cooper, head of the Immigration Law Clinic of The UC Davis School of Law, told me the "the current system is such a train wreck that the Obama proposal will not stop the immediate crisis." She related a story from one of her favorite clients:"[Detained] Individuals are affected in ways that I can't describe in words. One of my clients said it was as if he was dead for the 5 years he was detained and has decided to deduct the five years of detention from his age."

Thankfully, a federal judge recently recognized this madness and ruled that two immigrants, who have been detained for 20 months and 9 months respectively, were entitled to a hearing to determine if their constitutional rights were violated by unnecessarily prolonged detention.

Ultimately, the Obama administration must seriously commit to immigration reform that ensures ICE and DHS comply with sensible and fair regulations which afford individuals rights that are currently detained by an inefficient and morally bankrupt system.