By Dayna Rauliuk
Centuries ago, men and women landed in what is today the United States of America in search of a better life. To this day, individuals arrive in the U.S. in hopes of living a better life and seeking out the American Dream. Unfortunately, what many of these individuals face today are detention, and legal and financial hurdles.
In 2003, the Department of Homeland Security (DHS) was created in response to the terrorist attacks on September 11, 2001. One subunit of DHS is the U.S. Immigration and Customs Enforcement (ICE). The primary purpose of ICE is to “promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration.”
In furtherance of this purpose the number of asylum seekers that have been detained in detention centers has increased significantly in recent years. Asylum seekers who should otherwise have been released on parole are now being detained for extended periods of time. Even when parole is granted, steep bonds have been placed on individuals who previously would be released without bond. This issue is exacerbated by the lack of adequate representation and legal resources provided to those detained.
Parole for Asylum Seekers
Arriving aliens (a term used by ICE) who can establish during an interview that they have a credible fear of persecution or torture will be detained for further consideration for asylum. These individuals, so long as they do not present a security or flight risk, are to be paroled only if their continued detention is not in the public interest.
Between 2011 and 2013, ICE paroled 92 percent of arriving asylum seekers. However, in 2019 ICE’s New Orleans Office, which oversees detention facilities in five southern states, had a 99 percent denial rate for parole requests. In response to this effectively categorical denial of parole for hundreds of people who were lawfully seeking asylum, the Southern Poverty Law Center and ACLU of Louisiana filed a lawsuit against the Trump Administration. The U.S. District Court of the District of Columbia granted a preliminary injunction requiring restoration of the parole procedures.
Since this lawsuit, the number of parole requests granted has increased, but ICE officials are now using bonds as an additional hurdle for these asylum seekers. Some bonds are as great as $10,000-$30,000, presenting a significant burden for those looking to avoid detention. Individuals are required to pay these bonds in full before release. Usually, bonds were reserved for individuals who were more of a risk, such as individuals who had a criminal history. ICE officials are abusing their power to further detain individuals who pose no public safety threat.
Access to Legal Resources
An additional hurdle that asylum seekers face is the lack of access to legal resources. According to ICE detention standards, detainees are supposed to have “meaningful access” to a properly equipped law library and equipment required to prepare needed documents. ICE provides a list of at least 18 different legal reference materials, e.g., U.S. Constitution, legal dictionaries, and immigration law materials, that should be available to detainees.
Although these are the standards that are supposed to govern the detention centers, numerous centers fail to meet these standards. With only 14 percent of people in detention nationwide represented by counsel, those without counsel rely on the law libraries and resources provided to them in detention centers. The sheer number of detainees that do not have counsel, makes it evident how important it is for them to gain access to legal material to have a fair shot in their cases.
An ACLU research report noted that at La Palma Correctional Center in Arizona, the law library consisted of one computer and there were no books or legal materials available. At Richwood Correctional Center in Louisiana, there were three computers to be shared among 1,100 people. Furthermore, the only legal books provided were state statutes which are not relevant for immigration matters that are governed by Federal law.
Access to Legal Counsel
As mentioned above, only 14 percent of detainees are represented by counsel. This already low number of individuals that have counsel is further exacerbated by the increase in rurally located detention centers. The ACLU report noted that prior to 2017, there were four times as many immigration attorneys within a 100-mile radius of a detention center than after 2017 when detention centers started being utilized in more rural areas.
Having access to a greater number of immigration attorneys and legal programs is important to the success that an individual has in their case. Detainees represented by counsel obtained successful outcomes in 21 percent of cases nationwide, whereas unrepresented detainees only received successful outcomes in 2 percent of cases. This difference in rates of success makes it evident that detainees should have more access to legal counsel.
Where Do We Go From Here?
Since access to legal counsel and resources positively correlates with a favorable outcome in detainee court cases, these issues go hand-in-hand with issues facing detainees in parole hearings. Because of this, both issues need to be addressed.
First, Congress needs to increase their effective oversight of ICE. Currently, ICE is supposed to follow national detention standards and operate a grievance system where detainees can file complaints. However, since these are all internal systems, there has been little to no external oversight of what happens in ICE facilities.
ICE receives around an $8 billion annual budget. Congress should specify a certain percentage of this budget to be required to be used to increase the legal resources available to detainees to actually comply with ICE standards.
Congress also needs to use its budget allocating powers to make sure that ICE officials are complying with the parole system for asylum seekers. To ensure compliance with ICE’s mission statement, Congress needs to direct ICE officials to only place bonds on more risky asylum seekers. Returning the number of paroled asylum seekers to pre-2017 numbers will free up ICE detention centers and will hopefully enable the annual budget to be spent more appropriately to provide detainees with legal resources and basic necessities.
Second, independent inspectors and investigators are needed to ensure that detention centers are complying with the applicable standards. Independent inspectors could oversee ICE detention centers and draft reports for Congress. Independent investigators could also be used by the detainees as a means of external oversight. Currently, only an internal grievance system exists, which requires no actual accountability on the part of ICE. Providing access to independent investigators for detainees will provide them with a safer avenue for reporting mistreatment.
In a government that recognizes the importance of checks and balances, ICE has had little to no effective oversight. To remedy the serious issues mentioned above, Congress needs to provide effective legislation to ensure ICE is complying with its own standards and that these detainees are treated as equal human beings. This country, founded by immigrants who were seeking a better life, should be better.
Law Journal for Social Justice 