Immigration Reform: Focus Enforcement, Protect Due Process

The US immigration enforcement system has grown exponentially since the last major legalization program under President Ronald Reagan. Deportations have increased dramatically, from 30,039 in 1990 to over 400,000 in 2012, totaling over 4 million since 1990. As recently reported by the Migration Policy Institute, expenditures on immigration enforcement exceed spending by all other criminal federal law enforcement agencies combined.Yet rather than ensure public safety and enhance the rule of law, the indiscriminate enforcement of harsh laws has broken apart families and forced others to live in fear, while diverting public resources that could have been usefully spent in other ways.

Studies indicate that recent immigrants commit crimes at lower rates than US-born people. As local law enforcement gets increasingly involved in immigration enforcement through programs like Secure Communities, the interactions that lead to deportation are not arrests for serious, violent offenses, but often traffic stops and other matters that do not always lead to criminal charges. At the same time, an enormous number of crimes, including nonviolent offenses like shoplifting, now constitute “aggravated felonies” under immigration law (even if they do not match the definition of “aggravated felony” in criminal law) and are grounds for mandatory and permanent deportation, even of long-time lawful permanent residents. The federal crimes of illegal entry (a misdemeanor) and illegal reentry (a felony) also now make up over 50 percent of all federal prosecutions, driven largely by Operation Streamline and similar programs that seek to criminally prosecute everyone caught entering the US unlawfully. Customs and Border Protection refers more cases for criminal prosecution than the FBI, and some judges and prosecutors have raised questions about whether resources are being diverted from more serious criminal matters.

The sharply expanded caseload has severely impacted the rights of non-citizens to due process and to a fair hearing in both civil immigration courts and in the federal criminal justice system. The backlog in immigration courts has not diminished. A case for a non-detained person takes an average of 17.5 months to be adjudicated in immigration court, with some cases lasting over five years.Within this tremendously complex system, where losing a case can sometimes mean a permanent bar to returning to the United States, non-citizens are only represented by a lawyer if they are able to pay for counsel or can find pro bono assistance. The impact of having counsel is stark: asylum seekers, for example, are three to six times as likely to receive asylum if they are represented by counsel. Without appointed counsel, particularly vulnerable populations, like persons with mental disabilities and children, cannot fairly defend themselves or receive a fair hearing. Once a removal order is final, non-citizens have very limited opportunities to appeal the decision to a federal court. Thus, even when errors are made by immigration judges, it can be extremely difficult to remedy the errors, especially when the non-citizen has already been deported.

Even this flawed system of removal proceedings, with its delayed hearings and limited access to counsel, is unavailable to hundreds of thousands of people each year. The majority of deportations are not carried out through orders by an immigration judge but by mechanisms like “stipulated removals,” in which non-citizens accept removal before seeing an immigration judge, or “expedited removals,” in which non-citizens can only offer limited defenses to deportation and are heard not by a judge, but by an immigration officer. Many have reported being misled about and pressured to accept stipulated removal—even when they may have had valid claims to stay in the country legally—by officials who promised to release them or said, “You can come right back tomorrow.”[1]

The pressure of increased immigration enforcement has also had a significant impact on the federal criminal justice system. Under Operation Streamline and similar programs along the border, federal courtrooms have become unrecognizable, packed with defendants who plead guilty in groups, with lawyers who are able to meet with their clients for only 10 to 30 minutes at a time. Federal judges, prosecutors, and defenders have criticized Operation Streamline for wasting resources that would have been better spent on prosecuting more serious crimes.

And although the Obama administration claims that it is targeting serious and dangerous criminals for deportation, its claims do not hold up when the statistics are scrutinized. Although a greater proportion of non-citizens deported now have criminal convictions than ever before, of the 188,382 non-citizens deported for criminal convictions in 2011, 42 percent had as their most serious offense a conviction for immigration or criminal traffic offenses. Four years earlier, when there were almost 50 percent fewer deportations of people with criminal records, traffic offenses did not even make the top 10 offenses.

The blurring of the line between civil immigration enforcement and criminal law enforcement is perhaps most apparent and problematic in the vast system of immigration detention. To deprive a person of his or her liberty is a grave matter, particularly when it occurs outside the criminal justice system, with its established due process protections. Many nonviolent offenses, including minor possession of controlled substances and shoplifting, trigger a “mandatory detention” provision in immigration law, meaning immigrants (including lawful permanent residents) have no opportunity to post bond. By contrast, in the US criminal justice system, no one is held in comparable circumstances (in pre-trial detention, for example) without a hearing to determine if they are a flight risk or dangerous.

Immigration detention is supposed to be civil and administrative in nature, rather than punitive, and it should be used as sparingly as possible. As the American Bar Association has recommended, civil detention should be closer in nature to housing in a secure nursing facility or residential treatment facility than to incarceration in a prison. About half of all detainees have never been convicted of a crime, and even those convicted of a crime have already served any sentences meted out by the criminal justice system.

In the last decade, however, an expensive and extensive system of detention centers and local jails have held 3 million non-citizens, without due consideration of whether they are actually dangerous or at risk of absconding from legal proceedings. Numerous detainees, including torture victims and children, have endured punitive conditions in which medical care is grossly inadequate and sexual abuse goes unreported or unaddressed.

Prolonged detention also severely impacts non-citizens’ ability to fight deportation, as continued detention often separates them from their families, limits access to counsel (particularly when they are transferred far from home), and leads to financial hardship. Rather than ensuring that immigrants attend removal hearings, such detention unfairly impedes their ability to receive a fair hearing.

Recommendations:

• Reject the draconian and arbitrary provisions of the 1996 amendments to the immigration system and limit the definition of “aggravated felony” to serious violent crimes classified as felonies under state law.
• Restore discretion to immigration judges to weigh evidence of rehabilitation, family ties, and other equities against a criminal conviction in deciding whether to deport lawful permanent residents.
• Ensure that lawfully present non-citizens, and those non-citizens whose legal status is in dispute, who are facing removal have access to judicial review and appeal to a higher authority, as required by international human rights law. In addition, ensure that detained individuals, including those detained pending deportation, have access to judicial review of the decision to detain them. 
• Reform the expedited removal process to allow for a fairer and more complete review of a non-citizen’s arguments against deportation.
• Ensure immigration judges provide custody hearings for “arriving aliens” on an individual basis and review all deportation orders in order to reduce the risk of wrongful deportation.
• Make legal counsel available to indigent vulnerable immigrants, such as mentally ill persons and children, facing deportation or seeking asylum.
• Eliminate arbitrary deadlines currently in law, such as the one-year limit to apply for asylum.
• Halt Operation Streamline’s expansion and evaluate the need for continuing operation of such programs.
• Reform immigration detention, and:
• Limit mandatory detention to violent offenders;
• Do not subject lawful permanent residents and asylum seekers to mandatory detention (unless they are shown to be a safety or flight risk);
• Expand the limited alternatives-to-detention programs currently in use;
• Prohibit all long-distance transfers of detainees that could interfere with assistance of counsel or unduly separate detainees from their familes;
• Guarantee proper treatment of detainees, including access to adequate medical care;