WASHINGTON – Rights groups and government officials here have been testifying in a string of hearings, before both bodies of the U.S. Congress, on how to overhaul the United States’ huge immigration detention system, the scope of which has expanded massively in recent years in ways that some suggest impinge on civil and human rights.

According to official estimates, the federal government will detain some 400,000 people on immigration charges this year, at a cost of around two billion dollars. Activists say the size and functioning of the immigration detention system are out of alignment with “U.S. values” – and, increasingly, Washington politicians appear to agree.

If these people are not public safety risks … why are they detained at all?

“We are a nation of immigrants, but our immigration law is inconsistent with America’s values,” Senator Chris Coons stated at a Senate Judiciary Committee hearing Wednesday. “Our immigration system exacts a high cost on families, on civil liberties and on human dignity. This cost is unnecessary, unwarranted and unfair.”

Coons said the U.S. government is currently paying more than 160 dollars per day for those kept in some 250 immigration detention centers. He also noted that Congress-stipulated “bed quotas” – around 34,000 at any given time – for these centers appear to be driving policies at the U.S. Immigration and Customs Enforcement (ICE) and are responsible for keeping far more people under detention than otherwise would be necessary.  

That’s “enormously expensive”, Coons noted. “It could be cheaper while also better serving both our national security and our national commitment to civil rights.”

Indeed, the hearings come in the aftermath of a surprise announcement, early this month, that the government would be releasing nearly 2,300 people awaiting immigration trials. That number included “many who did not require detention by law”, according to testimony at the U.S. House of Representatives on Tuesday by John Morton, director of U.S. Immigration and Customs Enforcement.

While Morton explained the move as a necessary cost-cutting measure given the massive budget-cutting that came into effect at the beginning of March, the decision has outraged some conservatives. Yet ICE will save tens of millions of dollars on this move alone, simply in allowing immigrants awaiting trial to remain out on their own recognizance.

“It looks to me like maybe there’s an overuse of detention by this administration,” Representative Spencer Bachus, a conservative, told Morton, at Tuesday’s House hearing. “If these people are not public safety risks … why are they detained at all?”

In response, Morton admitted, “For many of the long-term residents, frankly, it doesn’t make any sense either as a matter of policy.”

Maer Torrescano, 6, rests with his father Havacuc, 24, from the state of Morelos, Mexico, at the U.S. Border Patrol detention center in Nogales, Arizona, May 31, 2006. REUTERS/Jeff Topping

The hearings are part of a flurry of bipartisan activity, both in Washington and nationally, aimed at reforming the United States’ sprawling, creaky immigration system. On Wednesday, Nancy Pelosi, a key Democratic leader in the House of Representatives, expressed optimism that the Congress would approve a comprehensive immigration reform package “before summer”.

Yet Senator Coons, who chaired Wednesday’s Senate hearing, warned that comprehensive reform “cannot be truly comprehensive if it does not address serious current flaws that deny immigrants minimum due process rights that are consistent with America’s values.”

He warned that today’s detention system “looks in many ways like a criminal proceeding”. Unlike in an actual criminal case, however, U.S. law does not offer those brought up on immigration charges the right to an attorney.

Compromised, punitive process

Over the past two decades, the U.S. government has poured hundreds of billions of dollars into stepping up border security and taken an increasingly hard line on immigration issues. The swollen detention system is one unintended corollary of this focus.

Legislation was significantly tightened in 1996, which among other things vastly expanded the number of immigration-related offenses considered felonies and which would require automatic deportation. Some of these laws were again strengthened on terrorism worries in the aftermath of the attacks of Sep. 11, 2001, but President Barack Obama has surprised many by deporting far more people than his predecessors had.

Rolling back some of these automatic penalties are now a central part of the push for reforms. Under the 1996 law, for instance, Congress largely did away with immigration judges’ discretion in ruling on immigration violations – for instance, taking into account how long a migrant had been in the country, the person’s work experience and the hardship that deportation may impose on his or her family.

“This change made for a far more punitive system,” Muzaffar Chishti, director of the New York office of the Migration Policy Institute, a think tank, told IPS. “Since 1996 especially, we’ve had a much more compromised review process, both at the administrative level and at the official level.”

By 2002, an immigration-specific appeals system was experiencing a massive backlog, prompting officials to allow the appeals process to proceed on a simple up-or-down decision by a single judge, with no explanation for verdicts. This led to a huge increase in the amount of cases appealed to the federal court system, Chishti says, to the point where half of the caseloads in some circuits today are immigration cases.

At Wednesday’s Senate hearing, Ahilan T. Arulanantham, a staff attorney with the American Civil Liberties Union, noted that immigration defendants were being forced to spend months or even years behind bars awaiting trial. He also noted that new technologies are available today that would cheaply and efficiently allow the accused to remain outside of detention but still ensure that they appear at required court dates.

Meanwhile, some within the U.S. immigration detention system probably shouldn’t even be there in the first place. Critics point in particular to refugees and asylum-seekers.

“The United States has a long history of protecting and providing refuge to victims of persecution,” Sarah Ibrahim, with Human Rights First, an advocacy group, told IPS.

“But what we’ve seen recently is the U.S. faltering in this commitment – for instance, by imposing deadlines that require asylum applications to be filed within a year of entry into the United States. We are also failing these people by keeping those under detention in jails and jail-like facilities without prompt judicial review, and at the behest of an underfunded and overstretched court system.”

In February, Human Rights First and more than 160 other organizations sent a letter to President Obama stating that “immigration reform legislation must include key changes to the U.S. asylum system to better ensure that refugees who seek the protection of the United States are afforded meaningful access to a fair, effective and timely asylum adjudication process.”