Thousands held without criminal charges, but many can't leave country

By Michelle Roberts
Associated Press


Published on Monday, Mar 16, 2009

America's detention system for immigrants has mushroomed in the last decade, a costly boom that was supposed to sweep up criminals and ensure that undocumented immigrants were quickly shown the door.

Instead, an Associated Press computer analysis of every person being held on a recent Sunday night shows that most did not have a criminal record and many were not about to leave the country — voluntarily or via deportation.

An official Immigration and Customs Enforcement database, obtained under the Freedom of Information Act, showed a U.S. detainee population of exactly 32,000 on the evening of Jan. 25.

The data show that 18,690 immigrants had no criminal conviction, not even for illegal entry or low-level crimes like trespassing. More than 400 of those with no criminal record had been incarcerated for at least a year. A dozen had been held for three years or more; one man from China had been locked up for more than five years.

Nearly 10,000 had been in custody longer than 31 days — the average detention stay that Immigration and Customs cites as evidence of its effective detention management.

Especially tough bail conditions are exacerbated by disregard or bending of the rules on how long immigrants can be detained.

Based on a 2001 ruling by the U.S. Supreme Court, Immigration and Customs has about six months to deport or release immigrants after their case is decided. But immigration lawyers say that deadline is routinely missed. In the system snapshot provided to the AP, 950 people were in that category.

The detainee buildup began in the mid-1990s, long before the 2001 attacks on the World Trade Center and the
Pentagon. Since 2003, though, Congress has doubled to $1.7 billion the amount dedicated to imprisoning immigrants, as furor over ''criminal aliens'' intertwined with post-9/11 fears and anti-immigrant political rhetoric.

But the dragnet has come to include not only terrorism suspects and cop killers, but also an honors student who was raised in Orlando, Fla.; a convenience store clerk who begged to go back to Canada; and a Pentecostal minister who was forcibly drugged by immigration agents after he asked to contact his wife, according to court records.

Immigration lawyers note that substantial numbers of detainees, from 177 countries in the data provided, are not illegal immigrants at all. Many of the longest-term noncriminal detainees are people seeking asylum, fighting to stay here because they fear being killed in their home country. Others are longtime residents who may be eligible to stay under other criteria, or whose applications for permanent residency were lost or mishandled, the lawyers say.

Still other long-term detainees include people who can't be deported because their home country won't accept them or people who seemingly have been forgotten in the behemoth system, where 58 percent have no lawyers or anyone else advocating on their behalf.

The immigration agency says detention is the best way to guarantee that immigrants attend court hearings and leave the country when ordered.

''It's ensuring compliance, and if you look at the stats, for folks who are in detention, the stats are pretty darn high,'' said spokeswoman Cori Bassett.

By comparison, though, most criminal suspects, even sometimes those accused of heinous offenses, are entitled to bail.

''We're immigrants, and it makes it seem like it's worse than a criminal,'' said Sarjina Emy, 20, a former honors student who spent nearly two years in a Florida lockup because her parents' claim of asylum was denied when she was a child. ''I always thought America does so much for justice. I really thought you get a fair trial. You actually go to court. [U.S. authorities] know what they are doing. Now, I figured out that it only works for criminal citizens.''

The use of detention to ensure immigrants show up for immigration court comes at a high cost compared to alternatives like electronic ankle monitoring, which can track people for considerably less money a day.

Based on the amount budgeted for this fiscal year, U.S. taxpayers will pay about $141 a night (the equivalent of a decent hotel room) for each immigrant detained, even though paroling them on ankle monitors (at a budgeted average daily cost of $13) has an almost perfect compliance rate, according to the immigration agency's own stats.

Power to detain


For years, the agency and its predecessor, the Immigration and Naturalization Service, had the power to detain immigrants. With little bed space or public clamor to lock people up, though, millions of foreigners quietly went about life in the United States.

In 1996, Congress passed a pair of laws requiring that immigrants who committed crimes be locked up for deportation, beginning a dramatic run-up in incarcerations. So-called criminal aliens — immigrants convicted of a crime, including some misdemeanors like low-level drug crimes — became mandatory detainees even if their original crime brought no prison time.

A system that housed 6,785 immigrants in 1994 now holds nearly five times that amount in 260 facilities across the country, most under contract with local governments or private companies. For this fiscal year, the federal agency has enough money budgeted for 33,400 people on any given night.

Emy, who was raised in Orlando, spent 20 months in a detention center even though she had no criminal record. She traded her Baby Phat clothes for a gray uniform and window-shopping at the mall for a law library behind razor wire.

Her crime? Her parents, who feared her father's political affiliations endangered the family, brought her and two brothers to the United States from Bangladesh in September 2003 — when she was 5, according to court documents.

She doesn't speak Bangla and never imagined a future without college. No one in her family realized her father's work certificate from the Labor Department didn't equate to legal immigration status.

Family members were rounded up in July 2007, treated as fugitives on a dated but active deportation order.

Her parents were deported first. Emy languished in custody while continuing her fight to stay.

But because the asylum application had been filed on behalf of the entire family, only the parents got a hearing. Emy never saw a judge, according to Emy and her attorney.

''Justice is not being served,'' she said from a prison pay phone.

In January, a federal appeals court denied her petition to stay in the United States. Fearing she'd celebrate another birthday behind bars, Emy agreed to be deported and left the country Feb. 18.

Immigration law ''is the only United States law where we punish the children for the actions of their parents,'' said Emy's attorney, Petia Vimitrova Knowles.

Fewer rights



Immigration violations are considered civil, something akin to a moving violation in a car, so the government can imprison immigrants without many of the rights criminals receive: no court-appointed attorney for indigent defendants, no standard habeas corpus, no protection from double jeopardy, no guarantee of a speedy trial.

''You're locking up people without even a hearing,'' said Judy Rabinovitz of the American Civil Liberties Union's Immigrants Rights Project. ''That, to me, is the outrage: basic due process. Since when do we allow the government to lock up people without even giving them a bond hearing?''

Most immigrants are navigating a complex legal system without an attorney. Fifty-eight percent went through immigration proceedings without an attorney in fiscal year 2007, according to the Executive Office for Immigration Review, a branch of the U.S. Justice Department.

But, immigration officials often argue, immigrants largely hold the keys to their freedom. If they simply agree to return to their home country, they can go, Bassett said.

''They're making a choice [that] they're going to appeal, which is their right,'' she said.

But even giving up, or winning a claim, doesn't always spell freedom, because the immigration agency acts as police officer, arraignment judge, jailer and prosecutor. It has sole jurisdiction over when a detained immigrant is sent back after a deportation order is issued, and can continue to hold immigrants while it appeals a decision that didn't go its way.

In one case, Ahmad Al-Shrmany, a 34-year-old Iraqi with no appeal pending, begged for a year to be deported. He wanted to be allowed to go to his native Iraq or his adopted Canada, where he had been granted asylum a decade ago. A lawyer filed a habeas corpus petition in December that went unanswered.

''Just deport me. That's your job,'' he said in a late January interview with the AP.

Less than a week after the interview, Al-Shrmany was deported to Canada, said his lawyer, Afreen Ahmed.

America's detention system for immigrants has mushroomed in the last decade, a costly boom that was supposed to sweep up criminals and ensure that undocumented immigrants were quickly shown the door.

Instead, an Associated Press computer analysis of every person being held on a recent Sunday night shows that most did not have a criminal record and many were not about to leave the country — voluntarily or via deportation.

An official Immigration and Customs Enforcement database, obtained under the Freedom of Information Act, showed a U.S. detainee population of exactly 32,000 on the evening of Jan. 25.

The data show that 18,690 immigrants had no criminal conviction, not even for illegal entry or low-level crimes like trespassing. More than 400 of those with no criminal record had been incarcerated for at least a year. A dozen had been held for three years or more; one man from China had been locked up for more than five years.

Nearly 10,000 had been in custody longer than 31 days — the average detention stay that Immigration and Customs cites as evidence of its effective detention management.

Especially tough bail conditions are exacerbated by disregard or bending of the rules on how long immigrants can be detained.

Based on a 2001 ruling by the U.S. Supreme Court, Immigration and Customs has about six months to deport or release immigrants after their case is decided. But immigration lawyers say that deadline is routinely missed. In the system snapshot provided to the AP, 950 people were in that category.

The detainee buildup began in the mid-1990s, long before the 2001 attacks on the World Trade Center and the
Pentagon. Since 2003, though, Congress has doubled to $1.7 billion the amount dedicated to imprisoning immigrants, as furor over ''criminal aliens'' intertwined with post-9/11 fears and anti-immigrant political rhetoric.

But the dragnet has come to include not only terrorism suspects and cop killers, but also an honors student who was raised in Orlando, Fla.; a convenience store clerk who begged to go back to Canada; and a Pentecostal minister who was forcibly drugged by immigration agents after he asked to contact his wife, according to court records.

Immigration lawyers note that substantial numbers of detainees, from 177 countries in the data provided, are not illegal immigrants at all. Many of the longest-term noncriminal detainees are people seeking asylum, fighting to stay here because they fear being killed in their home country. Others are longtime residents who may be eligible to stay under other criteria, or whose applications for permanent residency were lost or mishandled, the lawyers say.

Still other long-term detainees include people who can't be deported because their home country won't accept them or people who seemingly have been forgotten in the behemoth system, where 58 percent have no lawyers or anyone else advocating on their behalf.

The immigration agency says detention is the best way to guarantee that immigrants attend court hearings and leave the country when ordered.

''It's ensuring compliance, and if you look at the stats, for folks who are in detention, the stats are pretty darn high,'' said spokeswoman Cori Bassett.

By comparison, though, most criminal suspects, even sometimes those accused of heinous offenses, are entitled to bail.

''We're immigrants, and it makes it seem like it's worse than a criminal,'' said Sarjina Emy, 20, a former honors student who spent nearly two years in a Florida lockup because her parents' claim of asylum was denied when she was a child. ''I always thought America does so much for justice. I really thought you get a fair trial. You actually go to court. [U.S. authorities] know what they are doing. Now, I figured out that it only works for criminal citizens.''

The use of detention to ensure immigrants show up for immigration court comes at a high cost compared to alternatives like electronic ankle monitoring, which can track people for considerably less money a day.

Based on the amount budgeted for this fiscal year, U.S. taxpayers will pay about $141 a night (the equivalent of a decent hotel room) for each immigrant detained, even though paroling them on ankle monitors (at a budgeted average daily cost of $13) has an almost perfect compliance rate, according to the immigration agency's own stats.

Power to detain


For years, the agency and its predecessor, the Immigration and Naturalization Service, had the power to detain immigrants. With little bed space or public clamor to lock people up, though, millions of foreigners quietly went about life in the United States.

In 1996, Congress passed a pair of laws requiring that immigrants who committed crimes be locked up for deportation, beginning a dramatic run-up in incarcerations. So-called criminal aliens — immigrants convicted of a crime, including some misdemeanors like low-level drug crimes — became mandatory detainees even if their original crime brought no prison time.

A system that housed 6,785 immigrants in 1994 now holds nearly five times that amount in 260 facilities across the country, most under contract with local governments or private companies. For this fiscal year, the federal agency has enough money budgeted for 33,400 people on any given night.

Emy, who was raised in Orlando, spent 20 months in a detention center even though she had no criminal record. She traded her Baby Phat clothes for a gray uniform and window-shopping at the mall for a law library behind razor wire.

Her crime? Her parents, who feared her father's political affiliations endangered the family, brought her and two brothers to the United States from Bangladesh in September 2003 — when she was 5, according to court documents.

She doesn't speak Bangla and never imagined a future without college. No one in her family realized her father's work certificate from the Labor Department didn't equate to legal immigration status.

Family members were rounded up in July 2007, treated as fugitives on a dated but active deportation order.

Her parents were deported first. Emy languished in custody while continuing her fight to stay.

But because the asylum application had been filed on behalf of the entire family, only the parents got a hearing. Emy never saw a judge, according to Emy and her attorney.

''Justice is not being served,'' she said from a prison pay phone.

In January, a federal appeals court denied her petition to stay in the United States. Fearing she'd celebrate another birthday behind bars, Emy agreed to be deported and left the country Feb. 18.

Immigration law ''is the only United States law where we punish the children for the actions of their parents,'' said Emy's attorney, Petia Vimitrova Knowles.

Fewer rights


Immigration violations are considered civil, something akin to a moving violation in a car, so the government can imprison immigrants without many of the rights criminals receive: no court-appointed attorney for indigent defendants, no standard habeas corpus, no protection from double jeopardy, no guarantee of a speedy trial.

''You're locking up people without even a hearing,'' said Judy Rabinovitz of the American Civil Liberties Union's Immigrants Rights Project. ''That, to me, is the outrage: basic due process. Since when do we allow the government to lock up people without even giving them a bond hearing?''

Most immigrants are navigating a complex legal system without an attorney. Fifty-eight percent went through immigration proceedings without an attorney in fiscal year 2007, according to the Executive Office for Immigration Review, a branch of the U.S. Justice Department.

But, immigration officials often argue, immigrants largely hold the keys to their freedom. If they simply agree to return to their home country, they can go, Bassett said.

''They're making a choice [that] they're going to appeal, which is their right,'' she said.

But even giving up, or winning a claim, doesn't always spell freedom, because the immigration agency acts as police officer, arraignment judge, jailer and prosecutor. It has sole jurisdiction over when a detained immigrant is sent back after a deportation order is issued, and can continue to hold immigrants while it appeals a decision that didn't go its way.

In one case, Ahmad Al-Shrmany, a 34-year-old Iraqi with no appeal pending, begged for a year to be deported. He wanted to be allowed to go to his native Iraq or his adopted Canada, where he had been granted asylum a decade ago. A lawyer filed a habeas corpus petition in December that went unanswered.

''Just deport me. That's your job,'' he said in a late January interview with the AP.

Less than a week after the interview, Al-Shrmany was deported to Canada, said his lawyer, Afreen Ahmed.


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