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September|October 2004
Continental Divide By Jeffrey Rosen
Newtonians and Charlatans By Daniel J. Kevles
The Other Detainees By Serena Hoy

The Other Detainees

Lost in the protests about the detentions at GuantÃínamo Bay are 20,000 immigrants held behind bars in the United States.

By Serena Hoy

BEFORE ABU GHRAIB, THERE WAS UNION COUNTY JAIL. In 1995, three officers at the New Jersey facility were sent to prison for ordering immigrant detainees "to perform sexual acts upon one another" and "to assume unusual and degrading positions while naked." There was also Krome Service Processing Center, an immigration detention center near Miami. In 2001, after an investigation into allegations by a dozen female detainees that they had been sexually harassed and assaulted by 15 officers, the Justice Department announced it would no longer detain women there.

Mark Dow, a writer and poet who taught a high school equivalency class at Krome in 1990, was dismissed after complaining about the mistreatment of detainees. In his new and compelling book, American Gulag: Inside U.S. Immigration Prisons, Dow tells the stories of several detained immigrants held at Krome and similar facilities across the country. He makes real the plight of the immigration detainees, some 20,000 of whom are held at any given time.

Dow also presents the perspectives of other players, including immigration lawyers, detention center supervisors, and guards. He interviewed an officer named Edward Calejo, who was prosecuted for beating a Haitian detainee in 1998, and who gave this description of conditions at Krome: "At the time I was out there, there were about 100 guards. I'd say 60 percent of them slap you right across the head, kick you in the ass."

This is an important story to tell. Yet American Gulag may leave the reader with the false impression that violent guards are the detainees' worst enemy, when the broader and more intractable threat is the climate of governmental indifference that gives rise to such abuses.

FROM 2001 TO 2003, I WORKED AT A NONPROFIT ORGANIZATION in Washington, D.C., that served immigrants detained in Virginia county jails. Most of the detainees that my co-workers and I met had already given up their legal fight to stay in the United States. Their most common complaint was the length of time they had to sit in detention while waiting to be deported. Although the process is more efficient in some areas of the country, in the Washington, D.C., area it often took months. Immigration officials worked with a disturbing lack of urgency, seemingly unmotivated by either the humanitarian or the economic cost of delay to the taxpayers—on average, $85 a day per detainee.

Occasionally, detainees got lost in the system. My nonprofit worked with two Mexican brothers who had been detained for a year awaiting deportation. After spending several weeks fruitlessly trying to convince deportation officials to pay attention to the case, we finally convinced "a sympathetic government attorney to look up the case in the agency's computer system. He told us that the files had been closed several months earlier by mistake. Malik Jarno, a Guinean teenager whose asylum case eventually attracted attention from Amnesty International and several members of Congress, faced a similar delay. After arriving by himself at Dulles International Airport, following the death of his father in Guinea, Jarno was detained, at the age of 16, in a Virginia county jail. He apparently was forgotten there for about nine months. Jarno might have stayed in jail much longer, but for the letters that fellow detainees wrote to bring the case to the attention of the government.

In addition to delays, detainees also suffer from a lack of adequate medical care. In most facilities, they must make written requests for treatment. Responses frequently take three or four days, even if a detainee simply wants aspirin for a headache. Most jails do not have on-site doctors, and detainees complain that it is difficult to convince jail nurses that they need to see a physician. Serious medical problems often go unaddressed, either because of indifference on the part of jail medical staff or because the government refuses to pay for treatment. In Virginia, we met two people who had visible tumors and yet were not receiving medical care.

Immigration authorities' monitoring of these and other conditions of detention leaves much to be desired. Still, American Gulag misdirects some of its fire. The book alleges a coherent and malevolent plan to insulate the Immigration and Naturalization Service (and now the Department of Homeland Security's Bureau of Immigration and Customs Enforcement, which has taken over responsibility for the detention of immigrants) from any form of review or public scrutiny.

The purpose of the book, Dow writes, "is to make public what the INS and now the BICE try to hide." This conspiratorial perspective seems largely driven by Dow's efforts to fit into his narrative the INS's secret detention of hundreds of immigrants in the wake of the September 11 attacks. He argues that these detentions are best understood "as part of the larger context of INS secrecy and excessive authority."

Instead, the secret detentions are more accurately viewed as part of the overall response to September 11 by Attorney General John Ashcroft and the Justice Department, including the government's assertions, rejected over the summer by the Supreme Court, that it may deny court access to "unlawful combatants," even if they are U.S. citizens. In addition, the INS didn't create the detention system. Congress did.

Dow fails to grapple adequately with Congress's responsibility for the situation of the detainees, even as he quotes one detention facility superintendent who points out that he's not fighting to maintain the status quo. "I, quite frankly, am not up for, nor am I interested in doing battle with advocates who are seeking to change detention laws by attacking conditions of confinement," the superintendent said. "If Congress says they can all go out on bail, I really don't care." His point is well taken: To address the system's underlying injustices, advocates must focus their efforts on the laws and policies that created it.

IT IS NOT UNTIL NEARLY TWO-THIRDS OF THE WAY THROUGH AMERICAN GULAG that Dow begins to explain the legal context of the immigration detention system. Without understanding whom the government is detaining and under what rules, it is hard to know why we should care.

The average number of immigrants being detained in the United States on any given day more than tripled between 1994 and 2001, primarily as a result of changes enacted by two 1996 laws, the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. The new laws mandated detention for anyone who is in deportation proceedings because of a criminal conviction. They also greatly expanded the types of offenses for which lawful permanent residents (green card holders) could be deported, and they largely eliminated the discretion of immigration judges to waive deportation under compelling circumstances.

As a result, many people who have lived legally in the United States for decades, who may have arrived here as infants and have supported children or parents who are U.S. citizens, are now subject to deportation without any possibility of relief. Often they have committed relatively minor offenses. Immigrants have been ordered deported for writing bad checks, selling $10 worth of marijuana, or pulling someone's hair during a fight at a party.

In addition, even though the majority of immigration detainees are held in county jails and other correctional facilities, many have not been accused of any crime. Under the 1996 laws, asylum seekers fleeing persecution are now held behind bars. So are people who came to the United States to work or to reunite with family members and who were picked up in workplace raids, traffic stops, or patrols of local bus stations.

The government's justification for its broad detention policy is to prevent the immigrants it seeks to deport from going underground. Without enough space in immigration detention centers, the government has turned to local and county jails to house approximately 60 percent of detainees. Asylum seekers and others without criminal convictions are required to wear prison uniforms and handcuffs, just like the American criminals with whom they are held.

Much of the abuse and neglect American Gulag recounts is experienced both by immigration detainees and American prisoners. Yet immigration detention comes with additional perils. It is a significant obstacle to finding a lawyer. Detainees are often housed in remote rural areas, far from the metropolitan centers where attorneys generally practice, particularly those willing to take cases pro bono. Unlike criminal defendants, immigrants are not guaranteed a lawyer if they cannot afford one.

Unrepresented, the detainees are left to fend for themselves in a complicated system they may not understand, appearing before immigration judges and government attorneys who are often openly hostile. The results are readily apparent. Asylum applicants, for example, are six times more likely to be granted asylum if they have a lawyer than if they do not have one.

When detained immigrants do find lawyers, confinement makes the detainees more difficult to represent. They generally cannot help prepare their cases by collecting the supporting documents that might make the difference between a grant of relief and a denial. Lawyers are less likely to adequately prepare their clients to testify if they must spend hours driving to see them.

For detainees held in some remote facilities, entire proceedings, including the "individual hearing" at which a judge will decide whether or not to order deportation, are conducted by videoconferencing. Without the opportunity to meet a judge face to face, detainees find it harder to prove their credibility. Videoconferencing is also plagued by technical problems that make it difficult for immigrants, interpreters, lawyers, and judges to hear, see, and understand one another.

Detention also deters immigrants from pursuing relief. Even people with strong cases choose to abandon their fight to stay in the United States rather than spend months and possibly years behind bars waiting for a resolution. It is particularly poignant to see asylum seekers, who may have been imprisoned or tortured in their own countries and who came here seeking freedom from persecution, give up and go home.

DESPITE ITS FLAWS, AMERICAN GULAG PROVIDES A GENERALLY ACCURATE ACCOUNT of the inner workings of the detention system and its many players. Dow takes pains to note that even the detainees understand that there are good jails and bad jails, good guards and bad guards. As Dow correctly explains, the core problem with the system is its profound lack of accountability—the frequent lack of recourse from a decision made by one of the bad guys.

The lack of accountability and the climate of lawlessness to which it often leads pervade the immigration system. Immigration authorities still routinely fail to comply with the Supreme Court's 2001 decision in Zadvydas v. Davis, in which the court held that the government cannot indefinitely detain people it is unable to deport (because a deportee is stateless, the United States has no repatriation agreement with his home country, or the home country refuses to accept him). The government is now required to release these people after six months. Because most detentions that last longer now clearly violate the law, often a lawyer needs to do no more than enter an appearance on a Zadvydas detainee's behalf in order to ensure his or her release. Yet in districts with few lawyers or advocates monitoring the system, it seems likely that many people are languishing in indefinite detention, despite the court's decision.

Such arbitrariness is hardly confined to the government's compliance with Zadvydas. A national study in 2000 by the San Jose Mercury News found that while some judges granted asylum in half the asylum cases they heard, others granted it in only one out of 20. One judge approved fewer than 1.5 percent of the requests for asylum he heard—23 out of 1,569—between 1995 and 1999.

Detainees can no longer count on effective appellate review to address these disparities. The Department of Justice oversees the Board of Immigration Appeals, the court to which detainees may appeal the decisions of the 220 immigration judges across the country. Faced with a backlog of 60,000 appeals, the DOJ issued regulations in 2002 to "streamline" the process of review. The new rules eliminated three-judge BIA panels, which used to be standard. The single judges who now decide most appeals no longer need to issue written opinions. The rules direct them to affirm without an opinion any decision that is correct or reflects harmless error, or which raises issues that "are not so substantial" as to warrant a written response. By instructing courts to leave most of their decisions unexplained, the directive invites more arbitrariness. Even as the BIA's procedures were truncated to reduce its backlog, Attorney General John Ashcroft cut the number of judges by more than half, from 23 to 11. In combination with the new rules, the reduction ensures that meaningful review of many decisions will not take place.

In the wake of these changes, the federal courts have become increasingly critical of the BIA. In January, Judge Richard Posner of the Seventh Circuit wrote in a majority opinion that recent immigration cases reviewed by the federal courts of appeal suggest "a pattern of serious misapplications by the board and the immigration judges of elementary principles of adjudication." Last year, referring to both an immigration judge's order to deport a Mexican who had been living in the United States for 25 years and who had four children, as well as the BIA decision that affirmed it, Judge Kim Wardlaw of the Ninth Circuit wrote, "The decisions on review can best be described as two ships passing in the night." She added, "While we recognize that the BIA is swimming in a sea of cases, barely able to keep itself afloat, there remains no excuse for the apparent failure to read the decision one is reviewing and to review the decision that was made."

Enacted during a wave of anti-immigrant sentiment, the 1996 laws that are the root of the detainees' troubles have been hard to undo. But stopgap measures are possible. From 1997 to 2000, the Vera Institute of Justice in New York received INS funding to supervise the release of more than 500 people facing deportation, including asylum seekers, permanent residents with criminal convictions, and undocumented workers. When they were required to report regularly and were given information about the legal process they were going through, 91 percent appeared in court. That high rate was achieved at about 20 percent of the cost of detention. Implemented on a larger scale, such alternatives to lockup centers like Krome would rectify many of the injustices about which Dow writes.

Serena Hoy is a staff attorney at the Florida Immigrant Advocacy Center in Miami.

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