[Blogger’s Note: This week’s guest column is by Jennifer Oltarsh, an immigration lawyer practicing in Manhattan. She writes about how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.]
Immigration Law — Moving away from Individual Rights
By Jennifer Oltarsh
Immigration laws are increasingly more complex. When the laws deprive individuals of discretionary decisions, the result comes with a heavy price for individuals, their families and our country.
Each time the government passes immigration laws designed to impede whole classes of peoples, it reflects very poorly on this country. These broad-based laws designed to deprive individualized decisions have long been a part of the immigration system. Many of these laws have ultimately proved to be an embarrassment. A now infamous example occurred following decades of racism and discrimination against Chinese, when in 1882 the Chinese Exclusion Act passed. Under this law all Chinese were banned from immigrating to the United States and to naturalize. Initially a ten-year policy, it was later extended indefinitely and made permanent in 1902. This race-based policy remained in effect until 1943 when it was repealed when China became an ally to the United States in World War II. 130 years after passage of the Chinese Exclusion Act, Congress finally expressed regret for enacting discriminatory laws against the Chinese.
In 1996 two laws were passed with the goal to deprive judicial review and discretion. The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) envisioned that the deportation process from beginning to end would be within the executive branch and the hope was to curtail judicial review. Among IIRIRA’s many provisions, it mandated detention for a large number of non-citizens convicted of certain enumerated offenses, removed waivers of inadmissibility for many criminal offenses and sought to limit judicial review of final orders of deportation. As a result, the laws snare not only offenders with significant crimes, but many with minor offenses as well. As a consequence of these acts, the judiciary’s ability to curtail abuses has been stymied, courts have been foreclosed from reviewing many significant legal questions, including whether a foreigner can be released during proceedings.
This movement to deprive judicial decision-making is in line with the central role that mass detention has in Department of Homeland Security’s immigration policy. The explosion in detention is fueled by the Administration’s view on the centrality of detention and has been enabled by IIRIRA. The law is based on the false premise that we need mass detention and deportation to keep dangerous “criminal aliens” off our streets. In reality immigrants are less likely to commit crimes than native-born Americans. Despite the Administration’s claim that they are interested primarily in serious criminal offenders, in reality, a substantial proportion of those in detention and subject to deportation are there as a result of old and/or insignificant offenses. In the 15 years since IIRIRA’s passage — detention has risen from 6,280 beds in 1996 to the current daily capacity of 33,400 beds; in FY 2010 alone 363,000 people were detained. Taxpayers pay for these detentions. The detention include thousands of immigrants and permanent residents who pose no threat to the community. It is exceedingly costly and by exposing detainees to brutal and inhumane conditions of largely private detention centers, it portrays the worst of America.
We now face a situation where immigration detention has fueled a booming industry, while tearing apart families with no clear gains to public safety. Indeed, following years of wasted taxpayer dollars and destroyed lives, mandatory detention and deportation must end!
The failure to take individual circumstances into account has always resulted in untold human costs. We must finally and formally acknowledge that these are ugly laws and recognize that they are incompatible with America’s founding principles and that they should have no place in our society.