The
Obama administration is trying to wiggle its way out of the immigration
crisis created by the Bush administration without taking any decisive
steps to distance itself from its predecessor's immigration policies
and enforcement practices.
The recent announcements by Department of Homeland Security (DHS)
Secretary Janet Napolitano and officials of the department's
Immigration and Customs Enforcement (ICE) agency about reforms in ICE's
rapidly expanding immigrant detention system highlighted a tragic part
of the back-end mess created by the ICE-led crackdown on immigrants.
But rather than facing the crisis head-on, the Obama administration
has opted for some administrative tinkering to remedy some of the worst
features of ICE's enormously expensive and shameful Detention and
Removal Operations (DRO).
Surge in Immigrant Detention
Immediately after Sept. 11 the Bush administration, counting on
Democratic support, began beefing up immigration enforcement. As part
of the process of creating the Department of Homeland Security, the
administration mandated a more aggressive and comprehensive immigration
enforcement regimen, which was charted out in the Operation Endgame strategy document produced by DRO.
Published in 2003, Operation Endgame set out a 10-year strategy to: "Promote
the public safety and national security by ensuring the departure from
the United States of all removable aliens through the fair and
effective enforcement of the nation's immigration laws."
With the endgame clearly stated—to deport all removable aliens—all
that obstructed the implementation of the strategy was funding and
enforcement mechanisms. With strong bipartisan support that has
continued into the Obama administration DHS has raked in $1.8 billion
for detention this year alone in congressional authorizations for
enforcement funding and unleashed a stream of new enforcement
initiatives, such as Return to Sender, Operation Streamline, and Secure Communities.
Congress has also proved quite willing to authorize the creation of
new immigrant "beds" for captured immigrants remanded for detention and
removal. Detention beds for immigrants have tripled since the
mid-1990s—up to 33,000 for a projected 440,000 immigrants who will be
processed for deportation in 2009.
With all the money it can handle and congressional enthusiasm for
enforcement, DHS has been steadily expanding detention space for
immigrants, even opening a new detention center for arrested immigrant
families. But rather than directly taking on the responsibility for the
mass detention of immigrants picked up by its Operation Endgame, ICE
has outsourced this responsibility to a complex patchwork of
public/private detention centers.
Typically, detained immigrants are now sent to privately operated,
prison-like detention centers that are oftentimes owned by local
governments intent on padding budgets with detention per diems paid
from the seemingly bottomless ICE coffers. Technically, these
immigrants are under ICE custody, but the detained immigrants rarely,
if ever, see ICE officials.
In theory, at least, immigrant outsourcing could work if there were
proper oversight and control of the private prison industry and the
sponsoring local governments. In practice, though, ICE exercises little
oversight, leaving the welfare of the hundreds of thousands of
Operation Endgame immigrants in the hands of the so-called "privates"
and of the prison towns, both of which see immigrants in terms of
increased revenue streams from immigrant inmates. However, even within
the half-dozen ICE-owned-and-operated immigrant detention centers, most
of the custodial care is outsourced to private operators.
Operation Endgame focused on what it would take to remove all
removable immigrants by 2012. Left out of the strategy was a plan to
ensure that DRO would be properly and humanely managed.
Rather than charting out a civil detention system, "removable
aliens" have been routinely treated as criminal detainees and channeled
into privately run prisons where they are treated as criminals. In
prisons in remote rural locations, most along the Southwest border,
these immigrants are systematically cut off from legal support, family
contact, and proper medical care.
Death and Detention
Horror stories of unnecessary deaths in detention have resulted in a
wave of shocking investigative and policy reports, as well as class
action lawsuits. Records show that 104 immigrants have died in these
temporary detention facilities, where the average stay is 31 days,
since 2003. All the bad publicity, the advocacy work of groups like the
Detention Watch Network, and the rising costs of maintaining a
seriously flawed system forced the new administration to act.
Recognizing the detention center mess its enforcement programs and
Endgame strategy have created, the Obama administration now promises to
create a "truly civil detention system" that will come under strict ICE
oversight. ICE has said that over the next five years its new Office of
Detention Policy and Planning will overhaul its detention complex and
locate new ICE detention centers near major cities to ensure better
oversight and family/legal support.
The promised reforms in ICE detention are certainly welcome and
long overdue. But in the administration's failure to call a halt to the
Operation Endgame strategy and the ensuing immigration enforcement
programs, the administration has highlighted the essential continuity
in Bush administration immigration policy and practices. Neither
President Obama nor DHS Secretary Janet Napolitano ever promised an
entirely new direction in immigration enforcement policy, and they are
certainly keeping that lack of promise.
By couching immigration enforcement within a narrow legal
framework, Obama administration officials have repeatedly signaled a
strong commitment to law enforcement along with a much weaker
commitment to policy reform or a change in laws that categorize
otherwise law-abiding immigrants as criminal aliens. Instead, it has
stepped up immigration enforcement through a phalanx of "criminal
alien" and "border security" programs in the name of enforcing the rule
of law.
It comes as no surprise, then, that both ICE Director John Morton,
a career prosecutor, and DHS Secretary Napolitano predict that the
number of immigrants processed by DRO will not diminish under their
tenure. As recently reported in the Miami Herald, Napolitano
admitted that detention reforms by no means imply fewer immigrant
arrests. "We accept that we are going to continue to have and increase,
potentially, the number of detainees," Napolitano said.
A Forgotten Mandate
Even more striking, perhaps, than the continuing DHS commitment to
massive detention and removal has been its bureaucratic blindness to
the full extent of the back-end detention mess. Its failure to heed the
lessons of recent policy history is equally startling.
In the late 1990s Congress and the Clinton White House reacted to
the rapidly expanding detention system managed by the Department of
Justice (DOJ), although that period of expansion fell far short of the
current explosion in detention centers. Increased immigration flows and
harsh new laws that targeted both legal and illegal immigrants resulted
in a badly managed, largely unaccountable patchwork detention system.
In a half-hearted although welcome initiative, Congress authorized the
creation of an Office of Federal Detention Trustee (OFDT) in an attempt
to systematize, rationalize, and regulate the detention systems run by
the U.S. Marshals Service (USMS) and the Immigration and Naturalization
Service (both DOJ agencies).
The Justice Department's OFDT opened in September 2001 but never
was able to function as the coordinating office envisioned by
reformers. The creation of DHS took the major component of federal
detention out of DOJ hands, and the pre-Sept. 11 concerns about
unregulated, uncoordinated detention centers faded in the post-Sept. 11
policy environment.
All immigrants arrested by the Border Patrol and ICE eventually
pass through ICE-sponsored detention centers. But for an
ever-increasing percentage of immigrants being processed for removal,
these centers are only the last stop before deportation. As many as a
third spend time in USMS detention centers and Bureau of Prisons (BOP)
facilities before being remanded to ICE.
As part the Operation Endgame strategy, DHS laid the policy
framework for imprisonment, not just detention. Prior to detention a
deterrence strategy would kick in—sending a message to future
unauthorized immigrants that they would be treated as criminals before
deportation.
According to the strategy, DHS "promotes a balanced and integrated
enforcement strategy, which ensures that the probability of
apprehension and the impact of the consequences are sufficient to deter
future illegal activity … We will create consequences for and
deterrence to illegal immigration. DRO's service and enforcement
partners work diligently to identify, locate, apprehend, process, and
remove aliens who violate this nation's immigration laws."
ICE Director Morton's promise to create a "truly civil detention
center" is at best disingenuous and at worst deceptive. Morton oversees
an aggressive enforcement apparatus that sends hundreds of thousands of
illegal and legal immigrants into the core of the country's criminal
justice system where they are treated as criminals in a mushrooming
array of USMS detention centers and BOP prisons along the border.
Both BOP and USMS rely on the same patchwork system of private
operators and county-owned prisons that ICE depends on—mostly privately
operated and locally owned prisons for profit. The two Justice
Department agencies have created an array of separate but not equal
prisons for "criminal aliens," most of whom are criminals only because
of ICE's new enforcement practices and abusive deterrence strategy.
Like the ICE detention centers, these immigrant prisons and centers
(for pre-sentenced immigrants) are characterized by their lack of
transparency, lack of accountability, outsourced responsibility, and
abysmal medical care.
Since the mid-1990s and especially in the past several years as the
immigrant crackdown has hardened, BOP and USMS have been frantically
searching for new private and public partners to provide lockups for
the masses of immigrants sent their way by ICE.
Because of their designated criminal alien identity, the abusive
conditions these immigrants face under Justice Department care have
failed to attract the same kind of media, nongovernmental, and legal
attention that led to the recently promised ICE reforms.
Exercising more oversight over the ICE detention system is
certainly a necessary part of immigration reform. But even as it
promises welcome upgrades and changes in its detention system, ICE
continues to steamroll ahead with its Operation Endgame enforcement and
incarceration strategies that have resulted in a veritable gulag of
immigrant inmates.
Tom Barry is a senior foreign policy analyst with the Americas Program at the Center for International Policy in Washington, DC. He blogs at: http://borderlinesblog.blogspot.com/.
