Immigration Limbo

Friday, January 27th, 2012

Great bit of reporting by my HuffPost colleague Elise Foley:

 On a single day this past fall, the United States government held 13,185 people in immigration detention who had not been convicted of a crime, some of whom will not be charged with one, according to information The Huffington Post obtained through a Freedom of Information Act request. Instead, at a cost of roughly 2 million taxpayer dollars per day, the men and women were detained while immigration authorities sorted out their fates.

This case stands in stark contrast to the stated goal of immigration policy under the administration of President Barack Obama: to detain and deport unauthorized immigrants who’ve been convicted of crimes.

“ICE is focused on smart, effective immigration enforcement that prioritizes the removal of convicted criminal aliens, fugitives, recent illegal border crossers and egregious immigration law violators, such as those who have been previously removed from the United States,” Immigration and Customs Enforcement spokeswoman Nicole Navas said in a statement. “ICE’s enforcement approach is enhancing public safety in communities around the country.”

The FOIA request for information on all immigrants in detention on Oct. 3, 2011, turned up a list of nearly 32,300. Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial. Despite what the term “illegal immigration” implies, simply being in the country without status is a civil, not a criminal, offense.

Rapists and murderers, frequently cited as the main unauthorized immigrants ICE is trying to remove, made up a far smaller percentage of those held that day than the innocent, traffic violators or low-level drug offenders, according to ICE’s crime breakdown.

“The fact is, we’re not deporting huge numbers of rapists and murderers,” said Emily Tucker, director of policy and advocacy for the Detention Watch Network, which pushes for limiting detention and deportation. “They would like us to think that, but that isn’t what is going on.”

Locking people up is big business. The Corrections Corporation of America, which gives heavily to both parties, is explicit about the connection between immigrant detention policy and the private prison company’s bottom line. “[T]he demand for our correctional and detention facilities and services … could be adversely affected by changes in existing criminal or immigration laws, crime rates in jurisdictions in which we operate, the relaxation of criminal or immigration enforcement efforts, leniency in conviction, sentencing or deportation practices, and the decriminalization of certain activities that are currently proscribed by criminal laws or the loosening of immigration laws,” the company wrote in an analysis for investors filed with the U.S. Securities and Exchange Commission. “Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.”

I’ve poked fun at the HuffPost commenters for faulting private prisons for nearly everything that’s wrong with the criminal justice system. But the connection between private prisons, detention policy, and the odious immigration laws in states like Arizona is pretty hard to deny. I’ve never really been comfortable with private prisons. Whether they’re more efficient or cost effective is less important to me than the fact that I don’t like having a government-created industry whose bottom line is dependent on keeping as many people behind bars as possible. (I have similar feelings about defense contractors, though there are some important differences.) They also tend to be less transparent, and in many cases aren’t covered by open records laws.

Last July’s criminal justice issue of Reason also had  a good feature by Jesse James deConto explaining the odd legal space occupied by immigration detention centers.

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30 Responses to “Immigration Limbo”

  1. #1 |  a_random_guy | 

    Two points:

    First: you can’t have it all ways. You can’t complain that ICE is leaving the border open, and then complain when they detail illegal aliens.

    Second: isn’t it amazing what you can do with statistics? The author writes, ” Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial”. If she had written instead “Sixty percent of those held by ICE have been convicted of a crime, or are awaiting criminal trial”, then the story sounds just a bit different…

    Not such great reporting at all…

  2. #2 |  Judas Peckerwood | 

    The private prison industry is an abomination, using lobbyists and campaign contributions to push our elected representatives to pass laws to lock more of us up for longer. The one thing that really makes me hesitate with Gary Johnson is that his campaign homepage touts him as having privatized half of New Mexico’s state prisons.

  3. #3 |  Joshua | 

    Don’t trust anybody who profits from crime.

  4. #4 |  Radley Balko | 

    You can’t complain that ICE is leaving the border open, and then complain when they detail illegal aliens.

    I don’t think you’ll find very many people making both complaints. Most make one complaint or the other. That aside, I don’t see why you couldn’t make both complaints. Just because you want ICE to protect the border doesn’t mean you can’t object to the particular method they’re using to do it. For example, ICE could “protect the border” by shooting on sight every Hispanic-looking person within three miles of the border. I’d imagine quite a few people who want protect the border would find that particular method of enforcing it objectionable. At least I’d hope so.

    The author writes, ” Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial”. If she had written instead “Sixty percent of those held by ICE have been convicted of a crime, or are awaiting criminal trial”, then the story sounds just a bit different…

    I’m not sure I understand your criticism. The Obama administration claims it only arrests and deports undocumented immigrants who commit serious crimes. 40 percent of the 30,000+ in detention centers on the day of the FOIA request belied that claim. That’s a pretty significant number. No one is claiming all the immigrants ICE detains are innocent of any major crime. Only that there’s strong evidence that the Obama administration’s stated policy doesn’t conform with what ICE is actually doing.

  5. #5 |  Ben | 

    In that same vein of a malignant industry that lobbies heavily in favor of civil rights violations, let’s not forget the drug rehab industry, and the heavy subsidy that involuntary admissions represent to them.

  6. #6 |  Helmut O' Hooligan | 

    “I’ve never really been comfortable with private prisons. Whether they’re more efficient or cost effective is less important to me than the fact that I don’t like having a government-created industry whose bottom line is dependent on keeping as many people behind bars as possible. (I have similar feelings about defense contractors, though there are some important differences.) They also tend to be less transparent, and in many cases aren’t covered by open records laws.”

    That was an excellent summary of why private prisons are dangerous, Radley. Libertarians are known for advocating privatization of nearly everything, but I am glad you have the integrity to point out the conflict of interest and lack of accountability inherent in a private correctional setting. Another problem with private prisons is that they are a diversion from the real problem: Why the hell are government entities in the U.S. incarcerting so many people? Let’s ask that question before we start sending inmates over to Megacorp State Penitentiary.

  7. #7 |  Deoxy | 

    If an illegal immigrant comes into custody for any reason, they should be deported. Full stop.

    I think our current immigration* laws and our current illegal immigrants numbers are completely screwed up, but they’re only allowed to get that way because of the selective enforcement.

    Some kind of work program might be good. Certainly, our immigration process is completely, unbelievably insanely complex and time-consuming (hence all the illegals). But simply turning a blind eye to things makes a mockery of the whole thing, and makes it incredibly harder to actually FIX things.

    * and “family” law, and drug law, and tax law, and… yeah, we’ve got waaaaay too many laws, and a whole bunch of them are awful.

  8. #8 |  MH | 

    I’m surprised to see people promoting the naive idea that private companies are venal and unaccountable while state-operated facilities are these benighted guardians of the public interest. If this blog has shown anything it’s shown that public employees are not accountable, owing to politics and the power of bureaucracies and unions, and they act as special interests in their own right.

  9. #9 |  omar | 

    I’m surprised to see people promoting the naive idea that private companies are venal and unaccountable while state-operated facilities are these benighted guardians of the public interest.

    I think you are missing the point here, MH. Nobody said all those things you just said. People are, however, making a distinction between privatizing government services and privatizing government enforcement and punishment.

  10. #10 |  Leonard | 

    It is amusing that to the left, illegal “undocumented” immigration is not a crime. Actually, it is a crime. That is why that 40% of “non-criminal” immigrants are locked up. Because, of course, they are suspected of being criminals. And they are, all except, perhaps, a tiny percentage who are actually here legally.

    What percentage of the 40% of “noncriminals” is actually noncriminal? Strange — the article does not say. I am willing to bet that ICE does actually compute this number, and that it is 1% or less.

    How about a headline, “99% of detained undocumented persons are illegal aliens; 60% have criminal records”?

    As for alternatives to detaining suspected illegals: I am all for it if keeps costs down without leading to flight. OTOH, illegals already demonstrate that they (a) disregard US law, and (b) can live in the shadows. So, prima facae you have to think they are flight risks categorically.

  11. #11 |  Kevin | 

    Leonard, you did a good job of misunderstanding a significant portion of the article. It stated that being in the country without permission (illegally) is a civil law issue, not criminal law.

    Secondly, I disagree with Radley on the private prison issue. Government run prisons have the same problems. Instead of private corporations paying for influence, it’s the correctional officer’s unions, and other unions, buying up the votes of the legislature. Being that I live in CA, I see just how powerful those public employee unions are and how effective they can be at bending government to do their will. I would point out that government is also more intractable and less subject to public scrutiny than corporations in most cases.

  12. #12 |  Marty | 

    private health contractors to prison are slime. google ‘CMS prison death’ for a start down that nightmarish road.

  13. #13 |  Matthew | 

    a_random guy (3:14pm) wrote:

    You can’t have it all ways. You can’t complain that ICE is leaving the border open, and then complain when they detail illegal aliens.

    Yes I can. Rounding up and detaining suspected immigrants hundreds of miles from the border, months or years after they crossed the border, does nothing for border security.

  14. #14 |  Kevin | 

    Government health contractors can also be slime, google “Tuskegee Experiment”. As I see it, the problem still lies with government, because, whether they are providing the prisons and / or prison care themselves, or those things are handled by private agency, in either case, government is responsible for oversight. They are simply poor custodians of human care.

  15. #15 |  Leonard | 

    Kevin, I understood the author. She suggests that immigration law is not criminal law. Well, it is criminal law. Really. This is the relevant law: Title 8 of the USC, Section 1325:

    Any alien who
    (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
    (2) eludes examination or inspection by immigration officers, or
    (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

    And what is Title 18? “Title 18 of the United States Code is the criminal and penal code of the federal government of the United States. It deals with federal crimes and criminal procedure.” (My emphasis.)

    If you look at 1325 section b, you’ll see that it specifies a different immigration offense that has specific “civil penalties”, including this statement: “Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed. ”

    Illegal immigration is a crime under US law.

    So, how can Ms. Foley write what she wrote? Clearly she is misleading. Was it an outright lie? No. I think she is probably correct in a narrow technical sense. In our criminal law, one is innocent until proven guilty. Those detained on suspicion of being illegal aliens are not guilty — not yet. So, that 40% have not been convicted of any crime. They are criminals in most senses of the word; they have broken our criminal law. But they are not officially “criminals” in the sense that they have not been convicted of the criminal behavior yet.

  16. #16 |  Kevin | 

    Leonard, thanks for the correction. That’s what I get for believing what I read on the internet.

  17. #17 |  Boyd Durkin | 

    Being against private prisons because you think profits are bad is different than thinking illegal detention to boost your bonus is bad.

    Also, default that everything is solved if USG runs the business is stoopid. USG just contracts out to private business and gets bribed by unions. Oh…and there’s a line that goes back 3,000 years of people abused by government. But I’m sure we’re on the cusp of getting it right what with new professionalism, hope, and change.

  18. #18 |  Radley Balko | 

    Leonard:

    Being an illegal immigrant is a civil violation, not a criminal one. That is, your presence in this country as an undocumented immigrant is not in itself a crime.

    The actual act of trying enter the country illegally can be a criminal violation (I believe it’s a misdemeanor). But you pretty much have to be caught in the act. People arrested and imprisoned indefinitely for being here without documentation then, are getting arrested and imprisoned for a civil violation. Foley is correct. As is DeConto, and just about everyone else who has made the distinction when writing about immigration.

  19. #19 |  David | 

    Question of law: if someone is provably an undocumented immigrant, and has never been issued a valid visa, doesn’t process of elimination mean they must have entered the country illegally? I mean, an immigrant have to cross the border somehow; if they were born here, they’d be citizens! (And that’s a good thing)

  20. #20 |  supercat | 

    #8 | MH | “I’m surprised to see people promoting the naive idea that private companies are venal and unaccountable while state-operated facilities are these benighted guardians of the public interest.”

    The reason that private enterprises in most fields behave better than state-run enterprises in those same fields is that private enterprises must either satisfy their customers or else lose those customers to other enterprises that can. State-run enterprises seldom have to worry about such things. The problem with private prisons is that their occupants are the people who would be most affected by the differences among competing prison services, but they would not be the ones choosing which prison services to use. While prisons aren’t supposed to be pleasant for inmates, having arbitrary differences in unpleasantness between prisons is probably not helpful.

  21. #21 |  Omar | 

    All the illegal immigrants I know came legally on airplanes. They just never went home.

  22. #22 |  Joshua | 

    #20 | supercat:

    I think you’ve hit on something! The government can set a maximum level of allowed comfort and facilities for prisoners, and then the private prisons can compete for prisoners! Prisoners would get to choose which prison they serve in, and the prison would then receive a daily government stipend for housing that person.

  23. #23 |  Leonard | 

    Radley, what you are saying put in plain English is that illegals are not technically “criminal”, not because they did not actually break the criminal law — they did! — but for lack of specific proof of their criminality.

    Similarly I am not a “speeder” even though I got from Baltimore to DC in 30 minutes, because no policeman actually pulled me over, and I am not currently doing 90mph. And OJ is not a “murderer”.

    It is casuistry. One does not have to be caught breaking a law to be guilty of breaking it. One does not have to be convicted of a crime to have committed it. Yes: I believe that when trees fall in a forest, they do make a sound. Even if a government official is not there to record the event.

    It does not bother me at all that such “civil violators” are imprisoned. It does bother me that they are imprisoned inefficiently, if they are. It would also bother me if a significant percentage of them were shown to be legal immigrants or legal aliens; and it would especially bother me if it were shown that the system was inefficient in the discovery of such exculpation. What percentage of those detained for immigration violation are actually here legally? How long are such legal detainees held before being released? Perhaps your colleague Ms. Foley can put in a Freedom of Information Act request to clarify that. But… we both know she won’t. Well, at least I do.

  24. #24 |  JOR | 

    The best reason to be against private prisons, at least as we understand prisons, is because they would be more efficient.

  25. #25 |  Radley Balko | 

    It is casuistry. One does not have to be caught breaking a law to be guilty of breaking it. One does not have to be convicted of a crime to have committed it. Yes: I believe that when trees fall in a forest, they do make a sound. Even if a government official is not there to record the event.

    If a child is brought here by his parents as minor, and remains here until adulthood, he hasn’t committed any criminal violation, but his being here is a civil violation. If someone legally comes here on a visa, but overstays the visa, it’s a civil violation, not a criminal one.

    Similarly, it’s not a crime to have cocaine or marijuana in your system. It is illegal to possess cocaine or pot that you haven’t ingested.

  26. #26 |  Standard Mischief | 

    Radley>The actual act of trying enter the country illegally can be a criminal violation (I believe it’s a misdemeanor). But you pretty much have to be caught in the act. People arrested and imprisoned indefinitely for being here without documentation then, are getting arrested and imprisoned for a civil violation.

    Modest proposal – How about parity with Mexico? Equal punishment for being in the country illegally, equal levels for paperwork to establish legal residency or for the permission chit be allowed to work. If we want to get really crazy, we can have equal prison living conditions too.

    While we’re at it we can build an actual fence, actually all the way across the border. While we will probably save the construction expense itself out of the saving of not detaining people who are here illegally, we can also fund it by taxing all the money that crosses the border via our banks, western union, or debit cards at a stiff rate of say 20%.

    If this plan is successfully pulled together we’ll save money on immigration law enforcement expenses while forcing the government of our southern neighbor to the negotiating table. Hey, it sure beats spending billions to only barely get some semblance of democracy in Iraq.

    I’d negotiate hard. Tell ‘em that while our fence will remain high, the gate on this side can be just as wide as the one over there. They have resources, cheap real estate and a wonderful climate, we have freedom, democracy, and opportunity. Maybe we can make a deal?

    When Baja becomes the 51st state, maybe I’ll be able to load up my hunting rifle, holster my open carry piece, and drive my car totally unmolested to my 2nd home on the shore of the Gulf of California.

  27. #27 |  Leonard | 

    I will grant that there are exceptions that do not fall into the letter of the law. I would like to know how many of those thousands of “innocent” illegals were brought here as children.

    Regarding visa overstayers, here is the NONIMMIGRANT VISA APPLICATION form on the State Department’s website. It includes this question: “Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose?…” Overstaying one’s visa is unlawful, as you admit. Presumably, the USG does not let in those who say “yes” to the above question. Or if it does, very few of them. Therefore, I conclude that visa overstayers who get their visa while intending to overstay (which is to say, practically all of them), have “obtain[ed] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact”. Conclusion: they are, in fact, criminals.

    Now, I am not an immigration lawyer, or any lawyer at all. I do not know how courts actually interpret the law. I do know that the state is remarkably flexible about interpretation of all written law. Growing wheat on your own land is “interstate commerce”! If USG wanted to enforce immigration law as per my reasoning above, it could and would. The pieces are there. As it happens, USG does not want to — rather it is schizophrenic. The people want immigration laws enforced, and the laws exist to do it. Most businesses, the Democratic Party, and the progressive elites do not. Thus we get what we have.

    That does not change my opinion. The intent of the law is clear, even though the implementation is poor.

    Your example with drugs is not convincing. I am for legalization, but the spirit of the drug laws, if not the letter, is that USG don’t want you getting high. What is criminalized — made illegal per the actual written law — is not always exactly what they seek to control. In the case of drugs, making possession illegal has the advantage that it can be determined using low tech searches. Invading people’s bodies with a needle to get evidence of a crime has all sorts of problems with it, as I am sure you would agree.

  28. #28 |  supercat | 

    #27 | Leonard | “Therefore, I conclude that visa overstayers who get their visa while intending to overstay (which is to say, practically all of them), have “obtain[ed] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact”.

    It can sometimes be difficult to prove intent. On the other hand, the fact that there are some cases where people enter the country with no intention of overstaying a visa but end up doing so does not imply that one should ignore cases where people enter the U.S. on a visa but have no intention of ever leaving.

  29. #29 |  Fred | 

    Privatization doesn’t drive efficiency, *competition* does. In most cases privatization just consummates rent capture by allowing private profit from government monopoly power.

  30. #30 |  Deoxy | 

    If a child is brought here by his parents as minor, and remains here until adulthood, he hasn’t committed any criminal violation, but his being here is a civil violation. If someone legally comes here on a visa, but overstays the visa, it’s a civil violation, not a criminal one.

    I have to agree with Leonard on this one, Radley – the vast majority ARE criminals in that they did break a criminal law, with intent. That we have great difficulty proving that intent does not change the fact.

    How many of them are even assessed the obvious civil penalties? That tells you all you need to know about the intentions of those running the system.

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