No Conviction, No Freedom: Immigration Authorities Locked 13,000 In Limbo

By Elise Foley

On a single day this past fall, the United States government held 13,185 people in immigration detention who had not been convicted of a crime, some of whom will not be charged with one, according to information The Huffington Post obtained through a Freedom of Information Act request. Instead, at a cost of roughly 2 million taxpayer dollars per day, the men and women were detained while immigration authorities sorted out their fates.

This case stands in stark contrast to the stated goal of immigration policy under the administration of President Barack Obama: to detain and deport unauthorized immigrants who've been convicted of crimes.

"ICE is focused on smart, effective immigration enforcement that prioritizes the removal of convicted criminal aliens, fugitives, recent illegal border crossers and egregious immigration law violators, such as those who have been previously removed from the United States," Immigration and Customs Enforcement spokeswoman Nicole Navas said in a statement. "ICE's enforcement approach is enhancing public safety in communities around the country."

As the GOP presidential contest moves to Florida -- a key primary state and home to 1.5 million Latino voters -- the issue of immigration policy will move to center stage. Former Massachusetts Gov. Mitt Romney has positioned himself to appear as the candidate who is toughest on immigration, arguing that any of the roughly 11 million undocumented immigrants here without documentation should be removed regardless of circumstances -- a policy that would jam already overcrowded detention centers. Former House Speaker Newt Gingrich, meanwhile, has argued that law-abiding people with deep ties to their community and a long tenure in the United States should be given the opportunity to stay.

The FOIA request for information on all immigrants in detention on Oct. 3, 2011, turned up a list of nearly 32,300. Forty percent of those held by ICE had not been convicted of a crime, nor were they awaiting criminal trial. Despite what the term "illegal immigration" implies, simply being in the country without status is a civil, not a criminal, offense.

Rapists and murderers, frequently cited as the main unauthorized immigrants ICE is trying to remove, made up a far smaller percentage of those held that day than the innocent, traffic violators or low-level drug offenders, according to ICE's crime breakdown.

"The fact is, we're not deporting huge numbers of rapists and murderers," said Emily Tucker, director of policy and advocacy for the Detention Watch Network, which pushes for limiting detention and deportation. "They would like us to think that, but that isn't what is going on."

Locking people up is big business. The Corrections Corporation of America, which gives heavily to both parties, is explicit about the connection between immigrant detention policy and the private prison company's bottom line. "[T]he demand for our correctional and detention facilities and services ... could be adversely affected by changes in existing criminal or immigration laws, crime rates in jurisdictions in which we operate, the relaxation of criminal or immigration enforcement efforts, leniency in conviction, sentencing or deportation practices, and the decriminalization of certain activities that are currently proscribed by criminal laws or the loosening of immigration laws," the company wrote in an analysis for investors filed with the U.S. Securities and Exchange Commission. "Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us."

ICE has been publicly attempting to shift away from detaining innocent immigrants, and has implemented new policies to increase prosecutorial discretion. Separate data provided by ICE indicates progress in that direction. The percentage of non-criminals in detention decreased significantly between the 2008 and 2011 fiscal years, from 71 percent to 54 percent, according to that data, and deportation of criminal immigrants has increased from previous years.

ICE officials never claimed they would stop detaining and deporting low-level offenders and non-criminals entirely, despite policy changes intended to increase the proportion of dangerous criminals in the system. In a June 2011 memo from ICE Director John Morton, he emphasized that "nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention or removal of other aliens unlawfully in the United States."

Still, the administration has taken pains to neutralize its record-breaking deportation rates, which have earned them ire from immigration advocates. The continuing detention of tens of thousands of noncriminal and low-level offenders works against that effort, threatening to undermine political support for the administration among the immigrant community.

On Oct. 3, detainees considered the most dangerous, referred to as Level 1, made up 31 percent of those kept in detention facilities. Level 1, according to the memo, is composed of the highest-priority detainees "who pose a danger to national security or a risk to public safety," including for suspected terrorism, violent crimes and gang activities.

Authorities held 9,867 people classified as Level 1 in detention facilities Oct. 3. Of those, a fifth were held for violent crimes, including sexual assault. But more than a third were locked up for drug crimes, largely marijuana- or cocaine-related, or driving under the influence of alcohol and drugs.

Level 3 is made up of fugitives from immigration law with non-violent criminal convictions and illegal reentrants to the country. Half the people in this group were being held for a DUI or a lower-level drug violation. Another sixth were held for non-booze related traffic offenses.

The detention numbers can be loosely compared to data obtained by the Associated Press in 2009 as part of a Freedom of Information Act request, also based on a single day of data. On Jan. 25, 2009, there were exactly 32,000 people detained in the U.S. immigration system, according to a March 2009 article. The number for that day, shortly after Obama was sworn into office, is roughly the same today. The comparison shows progress toward the goal of detaining fewer innocent people: A significantly larger proportion of detainees, about 58 percent, had no criminal conviction, the AP reported of the 2009 sample.

Some of those listed as non-criminals may have violated civil immigration law or may have been charged with other crimes, including the federal crime of reentry, but not convicted.

It's one thing to deport immigrants who are in the United States without authorization. Anyone who enters a country outside of the legal immigration channels, or overstays a visa, knows that such a possibility exists. But it's quite another to separate that person from his or her family and lock him or her away for an indefinite period, while ICE works through its paperwork.

International human rights law requires governments to protect detainees from violent crime while in custody. Yet incidents of rape and violent assaults in immigration detention centers are not uncommon.

There are alternatives to locking up people who would not otherwise be imprisoned if not for their immigration status, ones that would leave the person with his or her family, and cost taxpayers far less than the estimated $95 to $141 per day spent to detain them.

"We're talking about a significant expense to U.S. taxpayers," said Michael Tan, a lawyer for the American Civil Liberties Union, which advocates for alternatives to detention. "It makes a lot of sense, and it's long overdue for the government to take a hard look at how it's spending its detention dollars."

Instead of detention for low-level or non-criminal offenders, advocates say the government should increase its use of ankle bracelets and other monitoring for undocumented immigrants not considered to be a flight-risk. Although some crimes require detention based on a 1996 federal law, the Illegal Immigration Reform and Immigrant Responsibility Act, immigration lawyer David Leopold said the definition of detention could include other steps that limit the freedom and movement of people who would otherwise be kept in detention facilities.

Leopold said the government does not yet seem to be considering that option on a large scale.

"Detention means that a person is not free," Leopold, past president of the American Immigration Lawyers Association, said. "Anybody who is wearing an ankle bracelet and is subject to monitoring on a 24-7 basis, is not free. So if they give me an ankle bracelet and tell me, 'you can't leave your house unless you have permission from immigration and you can't go here and you can't go there,' I'm detained."

Elise Foley is a reporter for the Huffington Post in Washington, D.C. She previously worked at The Washington Independent.