SCOTUS Rules That Immigrants Can Be Detained Indefinitely... And That's Not All

Immigration in the United States hasn't always been this way. Here's how immigration detention became a business.

Yesterday, the Supreme Court refused to review a lower court ruling that blocked the Trump administration from ending Deferred Action for Childhood Arrivals program (DACA), essentially buying the 800,000 DACA recipients some more time. But today, in a big blow to immigrant advocacy, SCOTUS ruled that people held in immigration detention are not entitled to periodic hearings for bail--that is, they can be held indefinitely.

This splintering 5-3 ruling started with Alejandro Rodriguez, a dental assistant and a legal permanent resident who came to the US as an infant. Rodriguez was convicted for joyriding as a teenager in 1998, and misdemeanor drug possession in 2003. He was detained for three years by ICE. The ACLU filed a class action lawsuit, eventually winning at the Ninth Circuit Court of Appeals. The Ninth Circuit ruled that immigrant detainees and asylum seekers cannot be detained indefinitely, giving them the right to a bond hearing every six months.

Rodriguez was released in 2007, forced to wear an ankle monitor. The ankle monitor cost only $10.55 per day--about 15 times less than detention.

7 things you may not know about immigration detention

1. You may want to blame Trump, but this started before his time

The Obama administration appealed to the high court--while immigration detention is expensive, the administration believed that “the hardship and costs were necessary to protect the public and ensure that immigrants show up for hearings,” according to Mother Jones. The Trump administration simply continued the case, further arguing that detained immigrants should not be recognized as a class that can bring legal action.

In this way, the distinction between undocumented and documented immigrants becomes blurred--as a group, they cannot litigate, and individually, few detainees have access to legal counsel. Besides, habeus corpus petitions are so backlogged that filing one might delay release.


2. Bond hearings can make or break someone’s life

Mark Hwang was driving with his one-year-old son when he was stopped by an immigration officer. When asked if he had ever been convicted of a crime, he answered truthfully: Years before, he had served a short sentence for marijuana possession. He was detained for months while his wife took care of their newborn twin daughters and infant son--unbeknownst to him, pleading guilty to a drug charge meant his detention was “mandatory.” He was ready to sign deportation papers when the court decision in Jennings allowed him to have a bond hearing. He employed an attorney, and got his marijuana conviction vacation. “A lot of people simply give up their cases because they can’t endure the hardship of being locked up,” said Hwang in an open letter. “Detention almost broke me, and I could have lost my life in the only country I’ve known since I was six years old.”

(A DREAM Act protester is arrested. Photo: Getty Images) 

3. Many detention centers are privately run--and that’s a huge problem

This ruling is happy news to the private prison industry. In late 2017, ICE requested more than 51,000 detainee beds--a 25% increase from 2016, which has private corrections corporations like GEO Group and CoreCivic, which each gave $250k to Trump’s inauguration, salivating at the mouth. ICE is opening five new private detention centers in Detroit, Chicago, St Paul, Salt Lake City, and southern Texas, alarming critics of the industry, one that had started to decline during Obama’s tenure. Immigration detention centers, meant to be holding facilities for civic matters, are under scrutiny by human rights groups and the legal system for reports of medical neglect and deaths in custody.  The conditions “undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment,” said a watchdog report that found moldy food and mistreatment in unannounced visits to five facilities.

ICE means big money to these corporations--it made up 24% of GEO’s third-quarter revenue; Core’s ICE-related payments increased 142% between 2014 and 2016. GEO was recently awarded a ten-year contract with ICE to develop and operate a $110 million immigrant jail in Conroe, Texas, projected to generate a revenue of $44 million--all taxpayer money.

Meanwhile, Laura Monterrosa, an El Salvadoran detainee at the Texas immigration detention center, reportedly remains suicidal after a female guard allegedly assaulted her for four months. Monterrosa is detained at the T. Don Hutto Detention Facility--a for-profit company a short drive from Austin, Texas. Monterrosa, who has allegedly attempted suicide at least three times, was also reportedly denied therapy. T. Don Hutto has been embroiled in sexual assault allegations before--in 2015, a former guard was accused of assaulting eight women, dating back to 2007. Monterrosa was abused in El Salvador for being gay. “I didn’t come here because I wanted to,” she said to the Outline.

Why is ICE building detention centers in these areas? They are well aware that the vast majority of detained immigrants do not have lawyers, and building new jails will deal a further blow to access to justice in immigration prisons,” said Heidi Altman, director of policy for the National Immigrant Justice Center. The private prison industry is certainly “winning” this presidency--meanwhile, the ACLU says the industry is creating “serious gaps in accountability and transparency,” while the authors of a 2016 paper from the Hamilton Project haven’t found much evidence that private prisons are cheaper for the government--or any more effective. 60% of detainees are held in privately-run facilities.

(A  woman protests migrant deportations at the Gary-Chicago airport in Gary, Indiana. Photo: Getty Images)

4. ICE is arresting more and more immigrants

ICE arrested 41,000 people in the first 100 days after President Donald Trump signed an executive order on border security and immigration enforcement--a 38% increase from 2016. The first nine months of 2017 saw ICE arrests shoot up by 42% from the year before. ICE is conducting more and more “non-criminal arrests” of undocumented immigrants whose only crime is living illegally in the United States.

And the backlog is startling: there are over 667,000 cases pending in immigration court. And there are only 334 immigrant judges.  So while arrests have gone up, these lengthy hearings mean a decline in the deportation rate.


5. It’s hard to stick up for your rights, if you're an immigrant

Maru Mora-Villalpando talked about being undocumented with a Seattle newspaper last year--and it may have attracted the attention of ICE. “I’m being put in deportation proceedings because of my political stance, because of my media presence, because I’ve utilized my freedom of speech,” said Mora-Villalpando, who has organized several protests and hunger strikes to bring attention to the conditions at the Northwest Detention Center in Tacoma, Washington. Ravi Ragbir, executive director of the NYC organization New Sanctuary Coalition, was arrested in January after a routine check-in, leading to much protest. While the federal judge who ordered his release had “grave concerns” that Ragbir was targeted, the government argues that Ragbir was detained because he was subject to a final removal order and “received all the due process he is constitutionally due.” A lawsuit has been filed accusing the administration of selectively enforcing immigration laws against activists.

6. We’re witnessing the rise of anti-immigration sentiment

Forget the sh*thole comment for a minute. Prior sheriff Joe Arpaio rose to national prominence by running an outdoor jail he proudly called a “concentration camp.” He doesn’t regret the remark at all:“So what? Maybe it is a concentration camp. I don’t want to make it look nice, like the Hilton Hotel. I want to say it’s a tough place so people don’t want to come there.” Arpaio, who was convicted of criminal contempt of court for his “flagrant disregard” for an order to stop detaining people solely on suspicion, was pardoned by the president as Hurricane Harvey devastated Texas. “Pardoning Joe Arpaio sends a very clear message to ICE agents…[not to be] overly concerned about individuals’ due process rights,” said Kevin Landy, a former ICE employee.

(The "Jericho Walk" outside of the ICE office and immigration court in New York. Photo: Getty Images)

7. Immigration wasn’t always like this

The new term “chain migration,” or family-based immigration, isn’t easy or fast in this country--though currently, it’s the most common way to get a green card. But the whole way immigration is conceptualized now is relatively new: until 1890, there was no national immigration system or agency in the United States, and a passport was only required for entry after 1918, when it was used for identification.

For something to be legal, there has to be an illegal way of doing it: “illegality” was created in 1924. People entering the country were inspected, literacy tests were administered, and numeric quotas were placed on European immigration...while non-Europeans were not allowed at all.  Working while undocumented only became illegal in 1986. The “right way” to immigrate is a very difficult thing to put a finger on.


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