Arizona Attorney - July/August 2009

In detention facilities in remote areas of the state of Arizona, thousands of men and women from all over the world are held for weeks, months and sometimes years at a time while the government determines whether they are deportable. This population regularly includes asylum-seekers, people with serious medical and mental health conditions, pregnant and breastfeeding women, and people with claims of U.S. citizenship.

Outside the public view, untouched by the legal protections and oversight built into the criminal justice system, immigration detention is growing quietly but at an astonishing rate. In 1996, the U.S. Immigration and Naturalization Service (INS) had the capacity to detain 8,270 people per day; as of 2008, U.S. Immigration & Customs Enforcement (ICE) has received funding for 32,000 detention beds, representing a fourfold increase in just over a decade. 1 Here in Arizona, the government holds roughly 3,000 immigration detainees on any given day, and that number is expected to grow. 2

Immigration Detention in Arizona
A Quietly Growing System Crying Out for Reform
BY NINA RABIN
What Is Immigration Detention?
To understand immigration detention, it is important to under-
stand what it is not.

Immigration detention is not part of the criminal justice system. Those detained are not “serving time” for any crime. Rather, it is part of the administrative process called removal, during which the government determines whether immigrants are eligible to stay in the United States and, if they are subject to a final order of removal, makes arrangements for their deportation. Detention is used for the convenience of the government, in order to prevent immigrants from absconding while their proceedings are under way and ensure that they show up for their deportation. It is not intended to be a punitive system, which is why courts have long held that immigrants in removal proceedings and detention are not entitled to the full panoply of due process rights that cover criminal defendants. 3

The skyrocketing rate of growth of detention over the past decade is a direct result of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), federal legislation passed by Congress in 1996 that, among other things, mandates detention for certain broad categories of noncitizens, including virtually any noncitizen with a criminal conviction and arriving aliens who lack proper documentation. Mandatory detention means that there is no consideration of whether individuals that fall under one of these categories pose a flight risk or threat while their deportation is pending. Instead, noncitizens in these categories must be detained for the entire duration of their removal proceedings.

In another striking contrast to the criminal justice context, in which there is an individual judicial determination of the availability and amount of bail, noncitizens subject to mandatory detention have no judicial review of the determination to detain them or consideration of release on bond. Our national policy is

to release those accused of crimes but to detain those whom the
federal government claims violated civil law.

In addition, noncitizens who are not in a category in which detention is mandatory are often detained. Although ICE has the authority to grant detainees who are not subject to mandatory detention humanitarian parole or release on bond, it does not often exercise its discretion to authorize such releases. 4

Key Concerns

In Arizona, five facilities house adult immigration detainees; they are located in Florence and Eloy. In keeping with national trends, the government agency in charge of detention and deportation, ICE, does not directly run the majority of these facilities, but instead establishes contracts with private prison companies and county jails.

Numerous reports and articles in recent years have highlight-
ed concerns about the conditions in immigration detention facil-
ities, both around the country and specifically in Arizona. 5 Key
concerns include:
• Medical and mental health care: Recent media coverage has
highlighted egregious incidents of medical neglect in deten-
tion facilities. In several incidents, the inadequate care result-
ed in death. 6
• Family separation: Detention sends immigrant families into
upheaval. Here, it is important to note that not only undoc-
umented immigrants are subject to detention. Many lawful
permanent residents, who have lived in this country for years

NINA RABIN is Director of the Bacon Immigration Law and Policy Program at the James E. Rogers College of Law and Director of Border Research at the Southwest Institute for Research on Women, both at the University of Arizona. Her work focuses on the impact of immigration and border policies on women’s rights. She directs projects that provide legal services and policy research to low-wage immigrant women workers and women in immigration detention facilities. Prior to her work in Arizona, Ms. Rabin clerked for the Ninth Circuit Court of Appeals and practiced in a civil rights law firm in California. She graduated from Yale Law School in 2003.