Wednesday, November 19, 2014

Detention centers in the deportation equation

Immigrants awaiting deportation – whether refugees seeking asylum or green card holders with years of legal residence in the United States – are often incarcerated in detention centers located in remote areas throughout the country. The government’s use of rural, geographically isolated prisons is presumably an effort to prevent overcrowding in the large cities where most illegal “aliens” are arrested by ICE officers. However, the rural location of the detention centers has such blatant and devastating effects on deportation defense, that it is questionable whether the government doesn’t purposefully isolate immigrants facing deportation in order to make the removal process easier. 

Although I will briefly explain the terms “legal immigrant” and “illegal immigrant” as understood in the Immigration and Nationality Act (INA), I will not use the statute’s term “alien.” No human is an alien. I use the term “non-citizen.”

A legal immigrant is a non-citizen that has been admitted into the United States under the country’s immigration laws. Examples include legal permanent residents (“green card” holders) and temporary seasonal agricultural workers. An illegal immigrant is a non-citizen not admitted into the country through legal channels and without a documented legal status.   

Both groups are potentially vulnerable to removal through the deportation process. Unlike a defendant in the criminal system, a non-citizen does not have a right to counsel at a deportation trial. Often lacking basic English, a non-citizen may be pitted against the forces of the Department of Homeland Security’s team of attorneys. 

Locating immigration detention facilities in rural counties prejudices both legal and illegal immigrants because it impairs the ability to gather evidence for defense and limits access to legal counsel. 

A legal immigrant might qualify, for example, for Cancellation of Removal. That form of relief requires a redwood tree of paperwork and evidence. A successful Cancellation of Removal case often includes: written declarations from friends and family attesting to the non-citizen’s good moral character, proof of a clean criminal history from law enforcement, medical records, financial documents spanning back half a decade. A non-citizen held in a rural detention facility simply does not have access to those documents. The remote location makes it physically impossible to gather the necessary documents. Likewise, friends and family on the outside might have a difficult time traveling to the detention center to offer help with collecting the myriad of documents. 

To further illustrate the problem of an isolated detention center, consider the effect on legally complex cases. For example, an illegal immigrant might defend against deportation by asking for asylum. The United States has joined the humanitarian effort to allow non-citizens to stay when they show a well-founded fear of being persecuted if returned to their home country. The process is incredibility complicated and most people have small prospects of succeeding when they represent themselves. For example, in 2007, Human Rights Watch noted that represented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the rate for those without legal counsel. A non-citizen held in a remote detention center simply does not have access to competent immigration attorneys that are found in larger cities like Los Angeles and New York. The Wickersham Commission observed that in “many cases” a lawyer acting for an alien would prevent a deportation “which would have been an injustice but which the alien herself would have been powerless to stop.” Although representation is clearly crucial, many non-citizens are represented by pro bono attorneys that simply cannot afford to travel to rural detention centers to help prepare a case. As Human Rights Watch laments, “[a]lmost invariably, there are fewer prospects for finding an attorney in the remote locations” where immigrants are detained.

Cesar Garcia Hernandez proposed a particularly innovative method to advocate for the rights of detained immigrants. Mr. Garcia Hernandez correctly noted that a non-citizen is not afford the protections of the Sixth Amendment, which includes right to legal counsel and right to a speedy trial, because they are not US citizens. However, Mr. Garcia Hernandez suggest that the governments process of detaining immigrants violations the Due Process Clause, which protects all regardless of legal status. A claim of Due Process violation, then, might effectively provide non-citizens with a legal remedy for the detrimental practice of detainment in rural locations.  

Whether the rural location of many detention centers is a pernicious strategy on the part of the government may be difficult to prove. Slowly the issue is gaining attention in the media and in the courts. In 2003, the Supreme Court recognized unconstitutional violations to Due Process that may occur from the government’s power to “detain, transfer, and isolate aliens away from their lawyers, witnesses, and evidence.” Let’s hope that recognition can serve as a spring board for immigration reform.


Kate Hanley said...

I agree that it would be difficult to prove maliciousness on the government's side. Rural, isolated land is likely cheaper to hold, maintain, and staff than many other places, and I wouldn't be surprised if that's all the reason the US needs to continue the practice despite the documented harm the location dies does to detainees.

Actually, now I'm curious. I wonder if it is actually cheaper to maintain and staff these isolated centers. If not, that could be an interesting point to hammer on politically.

Kate Hanley said...

(The above assumes that all the harms you mention are incredibly important, politically viable, and should be more important than minor cost-savings, but that cost could be another political argument to add to the toolbox if there are good points to be Amadeus about it.)