Dear Congressman Bachus,
Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S. By stating and asking “it looks to me like there is an overuse of detention by this administration. If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society. You are welcome in our club and we are glad to have you.
However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention. The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings. While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks. IIRIRA fueled the explosion of detention in several ways. First, it expanded mandatory detention to cover lots of people convicted of minor offenses. Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings. These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings. By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees. It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress. Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings. For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended. In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence. Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention. And IIRIRA made it clear that it did not matter when the offense occurred. It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual. Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law. The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal. IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman. Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status. Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status. When encountered by ICE, they have often been detained in the discretionary determinations of ICE. It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act. In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions. Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester. Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice. Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.
Finally, Congress has provided ICE with enormous sums of money to spend on detention. As you know, nature abhors a vacuum. As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically. ICE will spend the money Congress gives it on detention. It is up to Congress to say “no.”
Congressman, thank you for taking a stand against the overuse of detention. We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies. Thanks again for speaking out and we hope that the words are matched with action.
Benach Collopy LLP