Ballooning immigrant detention enrages advocates

Human rights advocates see the Biden administration’s expansion of detention-reliant immigration enforcement as a betrayal, guided by political headwinds rather than operational necessities.

In a letter to President Biden delivered on Thursday, 200 organizations voiced “outrage over your administration’s expansion of the cruel and unnecessary immigration detention system.”

The groups, most of them longtime opponents of the practice of immigration detention, are incensed over skyrocketing detention spending, with $3.4 billion destined to fund Immigration and Customs Enforcement (ICE) detention bed space in the $1.2 trillion federal spending package Biden signed in March.

“Our organizations work with and advocate on behalf of people who have experienced immigration detention. They carry life long scars from the mistreatment and dehumanization they endured because of the United States’ reliance on detention, mostly through private prisons and county jails. Your administration is further entrenching this reliance, marking an utter betrayal of your campaign promises,” wrote the groups.

Changing politics and a massive rise in migration have forced the Biden administration to move to the right on a series of immigration and border security issues, souring relations with human rights advocates who had cheered his win over former President Trump in 2020.

While many aspects of immigration policy are sore spots in that relationship, detention is the most acrimonious.

Under current enforcement procedures, foreign nationals who are slated for removal — deportation — are generally detained pending their return flight. Deportees-in-waiting can be jailed regardless of whether they also have a criminal record, even if their immigration violations are entirely administrative, for instance in the case of visa overstays.

Officials contend that proportionate to border encounters and growth in immigrant population, the expansion in detention space still means a smaller proportion of the immigrant population is being detained than in the past.

In fiscal 2023, ICE conducted 170,590 administrative arrests, and 43 percent of those arrested had prior criminal convictions or pending charges. A year prior, only 32.5 percent of foreign nationals arrested by ICE had some sort of criminal history, according to official figures.

According to the Transactional Records Access Clearinghouse (TRAC), a government data tracker housed at Syracuse University, 61.3 percent of ICE detainees as of April 7 have no criminal record, and “many more have only minor offenses, including traffic violations.”

Administration officials, as in previous administrations, maintain that immigration detention conditions are not jail-like or punitive and are necessary for operational reasons.

But immigration detention has for years been building up a massive file of alleged and proven cases of human rights violations and substandard care, both by government watchdogs and external groups.

“The system your administration is expanding is riddled with abuse and impunity. Your senior officials have been aware of these significant human rights concerns since day one. ICE’s jails and prisons operate under insufficient standards with inspections that are notorious for covering up deficiencies,” wrote the groups, which include Amnesty International USA, the National Immigrant Justice Center, Robert F. Kennedy Human Rights and the International Refugee Assistance Project.

“Inadequate medical care results in deaths; LGBTQ individuals in custody suffer homophobic and transphobic harassment and abuse; basic sanitation is often lacking; Black immigrants face unaffordable bonds and violence at disparately high rates; and ICE’s use of solitary confinement regularly meets the United Nations’ definition of torture.”

When Biden came into office, detention was at a historic low, in large part due to decreased immigration and enforcement during the pandemic.

Human rights advocates saw that as an opportunity to do away with an enforcement tool they find unnecessary.

“On the date of your inauguration, fewer than 15,000 people were in ICE detention. This presented a remarkable opportunity to wind down a wasteful and abusive system,” wrote the groups.

Detention abolitionists were somewhat heartened by 2023 and 2024 budget requests where the administration asked for reduced detention funding, and by a growing top-down attitude of internal review and investigations, including recommendations to close some detention centers with the most egregious violations.

“In an abrupt change of course, over the last two years, ICE has instead increased the number of people in custody. Most of the facilities on ICE’s internal closure list remain open, despite numerous reports from advocates and service providers further documenting the ineffectiveness of detention and the need for a different approach,” they wrote.

Administration officials contend that detention is necessary operationally for removal operations, and even more so with the growing number of encounters at the southwest border.

Many of the migrants who are released to the interior of the country either have asylum cases that could fail in immigration court, or are released into the interior with preexisting orders of deportation. Others can be processed through expedited removal, a fast-track way to deport foreign nationals who are apprehended at or near the border within two weeks of entering the country, which generally requires detention.

Citing limited resources, the Biden administration in 2022 rescinded an expansion of expedited removal established by the Trump administration, which made eligible for expedited removal any foreign national present anywhere in the country who could not prove their legal presence, or prove having been in the country for more than two years.

Still, according to the American Immigration Council, more than 20,000 migrants were placed in expedited removal between May and December of 2023.

And expedited removals represent a fraction of ICE detainees. According to TRAC, 34,580 people were being held by ICE as of April 7.

The Biden administration has markedly shifted policy from some Trump-era practices, including expansion of alternatives to detention — a series of controversial measures like digital tracking that advocates dislike, but prefer to detention.

But advocates and administration officials are operating under different paradigms of immigration policy: On one side mainly as an administrative field with broad humanitarian consequences, and on the other as a hybrid administrative and law enforcement matter subject to compulsory physical consequences and dependent on tactical deterrence.

“This suffering does not advance any rational policy goal. Detention does not provide an efficient or ethical means of border processing, and it certainly does not indicate to migrants that they are welcome in the United States. It merely exists to further the political goal of deterrence, which is cruel, inhumane and misguided — as even the most punitive forms of detention have been proven not to deter people from seeking safety or a better life,” wrote the groups.