How to Create an Immigration System That's Worthy of American Values

This was cross-posted to The Huffington Post.

Today, the Senate Judiciary Committee will hold a hearing entitled "Building an Immigration System Worthy of American Values," where I will testify. The hearing will address how our immigration system currently fails to live up to our Constitution because it does not ensure the due process right to a fair day in court before locking someone away for months in an immigration prison or permanently banishing them from our country. Furthermore, although immigration law is formally termed as "civil," this is legal fiction; in reality, it has the hallmark harshness of the criminal justice system. The outcomes of this system are often devastating, not only for the immigrants themselves, but also for their families.

Consider the case of Melida Ruiz, a 52-year old grandmother who was imprisoned for seven months in New Jersey. Melida is a longtime green card holder with three U.S. citizen children and two U.S. citizen grandchildren. Immigration officers came to her home and arrested her in the spring of 2011. Under draconian "mandatory custody" provisions enacted in 1996, Melida could not be released from immigration prison because she had a nine-year-old minor drug possession offense. Although she had not been sentenced to any jail time for that offense, and although it was her only conviction during the thirty years she had lived in the United States, the federal government did not permit her simply to ask a judge for release on bond because of that old conviction. Melida obviously posed no danger to anyone and was not a flight risk.

Melida is but one of the many immigrants who are incarcerated while their cases remain pending in immigration courts. If we are to have an immigration system that's truly worthy of America's values, four critical reforms are in order, which I will be discussing at today's hearing:

1. Legal representation for people who can't adequately represent themselves: Currently, immigrants never have the right to an appointed attorney in deportation proceedings – no matter how complex their case, how serious the consequences of deportation, or how obviously unable they are to represent themselves. Every day, immigrants with serious mental disabilities who can't even understand the charges against them face deportation without the assistance of a lawyer. Even children suffer this fate—going before immigration judges with no attorney while trained DHS prosecutors argue for their deportation. A fair immigration system would give judges the power to appoint attorneys in cases like these, rather than allowing 84% of prisoners in immigration jails to go unrepresented.
2. Individual justice: Our immigration system must give judges the power to consider deportation on an individualized basis, in order to decide if the drastic measure of banishing someone from our shores, sometimes forever, is actually appropriate. Immigration Judges had this authority for much of the twentieth century—and exercised it wisely—but their discretion was undermined by draconian laws enacted in 1996. Today, immigrants routinely face costly mandatory deportation as a result of offenses that the criminal justice system does not consider serious enough to justify a prison sentence, including many drug offenses and minor theft offenses. Even people who served in our nation's military or are the sole caretakers of American citizen children must be detained and deported under our draconian laws.
3. Curtailing our immigration prisons: We must curtail the mass immigration prison system. In FY2011, DHS detained a record-breaking 429,000 men, women, and children in immigration jails across the country. Under DHS policies, thousands of individuals face years of imprisonment while their immigration cases are pending, and most of them never even receive a bond hearing to ask a judge to determine whether their detention is necessary. Furthermore, DHS interprets mandatory custody provisions to require incarceration without bond for virtually all people with criminal records—including nonviolent misdemeanors with no jail sentence. Rather than treat detention as the default, we should look to effective alternatives, such as travel restrictions, curfews, and electronic monitors, and afford all immigrants the due process of a bond hearing to determine whether they need to be locked up in the first place.
4. A truly "civil" detention system: Although immigration prisons are technically civil detention centers, they are generally indistinguishable from prisons and jails. Immigration detainees sleep in locked cells wearing prison jumpsuits, unable to hug their loved ones for months or years on end because they are not allowed "contact" visits; suffer substandard medical care; and face the risk of sexual abuse. We must dramatically improve conditions of confinement. No one should be subject to inhumane conditions of detention.

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