Appearing at a Jan. 30 briefing before the U.S. Commission on Civil Rights, Karen Grisez, former chair and special advisor to the ABA Commission on Immigration, stressed the “serious need to evaluate the United States’ system of immigration detention and the deleterious impacts it has on individuals and families.”
The commission briefing focused on the civil rights of the more than 400,000 individuals detained annually by Immigration and Customs Enforcement (ICE) while awaiting the outcome of their immigration cases. Despite ICE’s civil legal authority, the U.S. immigration detention system has traditionally held detainees in jails and in jail-like facilities. Of the more than 33,000 daily detention beds available to ICE, over half are rented from private prisons and state and local jails.
The numbers of those detained are only growing, Grisez said, with detention sometimes lasting months to years before an individual’s fate is determined. This “loss of liberty” has punitive effects and can disproportionately affect those who are already more at risk, she explained.
“The impact of detention is particularly negative for certain vulnerable groups, such as families enduring indefinite separation, asylum-seekers and victims of crime suffering from trauma and fearful of government authority, and those with physical or mental conditions that may be exacerbated by the lack of adequate medical care,” she emphasized.
Due to the adverse impact of detention, including the difficulty immigration detainees face in receiving legal representation, the ABA opposes detention except in circumstances where the individual presents a threat to national security or public safety, or is a flight risk. The ABA instead supports humane alternatives to ensuring individuals appear in court and supports consistent standards for those who are detained to ensure individual rights and humane treatment.
The ABA and other organizations worked with the government to develop National Detention Standards that took effect in 2001 and were updated in 2008 and 2011. Through its Detention Standards Implementation Initiative, the ABA Commission on Immigration recruits pro bono lawyers to tour and report on certain detention facilities to evaluate the implementation of the National Detention Standards.
ICE facilities have not consistently implemented the standards, Grisez testified. “As evidenced by the continuing complaints that the ABA receives from detainees and other sources, it appears that ICE’s annual inspection process alone is not an adequate mechanism for ensuring full detention standards compliance by all facilities,” she said.
In addition to the National Detention Standards, ICE has developed civil detention principles as part of a plan to reform its detention system, but the agency has not adopted or created detention standards that would require a transition to a civil immigration detention system. The ABA adopted its own set of Civil Immigration Detention Standards in 2012 which provide that individuals should be kept in as close to normal living conditions as possible except for those cases where the individual poses a danger.
Grisez also emphasized the importance of access to legal representation for detainees, citing that 50 percent of noncitizens in immigration proceedings are without legal counsel – a percentage that rises to 80 percent for those in detention. This is partially due to cost and, for those in detention, remote facility locations and communication barriers. When those who seek asylum do have representation, she explained, their success rate goes up.
She highlighted the ABA’s pro bono representationprojects in Harlingen, Texas, and San Diego, California, and also expressed support for the federal Legal Orientation Program (LOP), which educates detainees about the immigration system through presentations by nonprofit organizations. The ABA urges that LOP, now available in 30 detention facilities, be expanded to all detained persons in removal proceedings.