Debt, Detention, and Due Process: Why Lamar Smith’s Detention Bill (HR 1932) is the Wrong Approach to Fixing the Immigration Detention System

As Congressional leaders and President Obama debate the federal borrowing limit and anxiety over the fiscal condition of the U.S. government continues to grow, the House Judiciary Committee is preparing to mark up a bill that would lead to more tax dollar waste. Among other things, the legislation would expand the vast system for detaining immigrants and asylum seekers without basic procedural safeguards. The financial cost of immigration detention is enormous. In Fiscal Year 2010, the U.S. government spent $1.7 billion to detain 363,000 immigrants in a network of approximately 250 jails and jail-like facilities throughout the country. Of the hundreds of thousands of immigrants in detention each year, some are asylum seekers – individuals who have fled political, religious, ethnic, and other forms of persecution who are in the United States seeking protection. In a statement submitted for the May 24th hearing on H.R. 1932, Human Rights First provided several examples of asylum seekers who have been forced to languish in jails and jail-like facilities before being granted asylum in the United States. Among those include a Baptist Chin woman who fled Burma for political and religious reasons. U.S. taxpayers spent $90,000 detaining her for 24 months before she was granted asylum, even though she had proof of her identity and family in the United States and the U.S. government agreed that she would be subjected to torture if returned to Burma. Similarly, U.S. taxpayers spent $53,000 detaining a Tibetan man, who fled to the United States after being tortured by Chinese authorities for posting pro-Tibetan independence posters, for 11 months.  Sadly, their stories are not unique. Because the system lacks basic due process safeguards, asylum seekers are regularly held at the American taxpayers’ expense for months and sometimes years. In a report on the U.S. detention of asylum seekers, Human Rights First found that between 2003 and 2009, the Department of Homeland Security (DHS) detained thousands of asylum seekers at an estimated cost of over $300 million. From both a human rights and fiscal responsibility perspective, detention – which imposes a severe restriction on individual liberty and for which DHS spends an average of $122 per person, per day – should be used sparingly and only when determined on a case-by-case basis to be necessary, especially as cost-effective alternatives to detention are available and have been proven successful. Nevertheless, on Thursday, July 14th the House Judiciary Committee will mark up the “Keep Our Communities’ Safe Act of 2011” (H.R. 1932), a sweeping legislative proposal that strips away due process safeguards for determining whether detention is necessary on a case-by-case basis; allows for the prolonged detention of asylum seekers and other immigrants in removal proceedings by barring categories of detained immigrants from requesting bond determination hearings; prevents immigrants in detention from petitioning to federal courts for habeas corpus review except in the U.S. District Court for the District of Columbia; and requires indefinite detention for certain categories of immigrants who cannot be removed to their home countries, either because the United States lacks diplomatic relations or because their home country refuses to accept their own nationals from the United States. While H.R. 1932 couches itself as a measure to “keep our communities safe” and provide for the detention of “dangerous immigrants,” its impact would be a dramatic and costly expansion of the immigration detention system for many persons – including asylum seekers – who do not warrant that description and whose detention is unconnected to community safety. The immigration detention system is in great need of reform; however, the approach taken in H.R. 1932 by Representative Lamar Smith (R-TX/21st) and the bill’s 20 cosponsors is the wrong one. Improving the immigration detention system so as to make it both more cost-effective and more consistent with human rights requires strengthening the protections available under current law, not curtailing them.

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Published on July 12, 2011

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