Thursday, March 26, 2009

Detention: A Necessity of Border and National Security

The detention of hundreds of thousands of immigrants every year in the United States represents a violation of human rights, Amnesty International USA said in a report on Wednesday. But is it?

On an average day, the rights group said, more than 30,000 immigrants are in detention facilities. That's triple the number that was in custody a decade ago. Americans should be outraged by the failure of their government to expedite the removal of illegal aliens. Enough Justices of the Peace or Immigration Judges must be assigned to the detention facilities to enable a decision to be made within 24 hours of the intake of the detainee, with only a week for any appeal. Contractors who operate detention facilities should be compensated partially on the basis of throughput rather than solely on the basis of the number of detainee-days. An financial incentive must be created to move the detainees out of the facilities as quickly as possible.

But that is not enough. The able-bodied males directed to be removed must first be put to work on border infrastructure for six months as an object lesson to those who choose to violate our borders.

Our immigrant past is just that. "Past" is the operative word. Whether citizens or legal immigrants have been here five years or five generations, their human rights and legal rights are and must be respected. But those who are here illegally enjoy a lesser degree of protection. They are only entitled to be treated humanely and to have their cases judged promptly without bias.

More than 300,000 people are detained by U.S. immigration officials each year but that is only a fraction of the number who are apprehended in the immediate environs of the border or internally. This number may include asylum seekers, torture survivors, victims of human trafficking, illegal aliens, and occasionally, longtime legal permanent residents detained in error. Asylum seekers, including torture survivors and victims of human trafficking, are the most difficult cases because proof is often lacking or difficult to obtain.

The use of detention as a tool to combat illegal aliens and border violators is a natural function of sovereign nations and is fully consistent with human rights provided the detention is humane and brief. However, people should not be allowed to languish in American immigration detention facilities without a hearing. They are entitled to an immediate opportunity to show why their detention is unwarranted. The burden of proof is theirs. The cases of those who claim to be citizens or permanent residents should be given priority for adjudication so, if justified,they can be released with the apologies of the government and reimbursement for any costs or losses they may have incurred. E-verification of immigration or work status is an easy way to expedite the adjudication of all cases. Justices of the Peace or Immigration Judges should be provided with a narrow and rigid set of criteria for their decisions and any subsequent appeals so that there are no unnecessary delays and no extended detention. Justices of the Peace must be able to pass a written test on procedure and criteria before they begin work. They needn't have a law degree.

Those who wish to self-deport rather than await adjudication should be allowed to do so after fingerprints, photographs, and DNA samples are taken and checked against criminal data bases. These self-deportees should be admonished that if they return, they will be treated as repeat offenders and subject to a minimum of two years in prison.

The U.S. government must ensure that all who are apprehended and detained receive an immediate hearing to determine whether they meet the criteria for release. Fraudulent documents or duplicate or mismatched social security numbers should be considered prima facie evidence of illegal presence and a basis for a summary judgment subject only to the one week for appeal.

As permitted by law,U.S. officials, quite properly, stepped up detentions after the September 11 attacks. There remains every reason to expect another and perhaps even more disastrous attack by terrorists in the near future. This year more than 400,000people may be detained. Their cases must be expedited for many reasons. Although no country one comes close to detaining the number of people that the United States does, this country is in a particularly vulnerable position with long borders and many ports of entry. Its proximity to countries that are unable or unwilling to restrain their own populations propensity to ignore borders adds to that vulnerability and fully explains the number of detainees. Moreover, other countries may not have nearly the attraction of the U.S. for terrorists or illegal aliens. After all how many wish to immigrate to China, Russia, Bangladesh or India?

According to the report, there were about 12 million illegal aliens living in the United States as of January 2007. The top five countries of origin were Mexico, El Salvador, Guatemala, the Philippines and China. Mexico produces as many as the next ten countries combined. Hence the focus of immigration authorities often falls most heavily on Mexicans because of their sheer numbers.

The Department of Homeland Security can detain people at the border or during raids if it suspects them of an immigration violation. People detained at the border are not entitled to a review of their detention by an immigration judge, but neither should they be returned across the border without some penalty, such as six months work on border infrastructure alluded to above. Those apprehended inside the United States have the right to appear before a judge, but the wait can be long and that problem needs to be fixed with more judges assigned to the detention facilities and a set of strict criteria for their decisions. Asylum seekers must resign themselves to longer delays as efforts are made to obtain corroborating evidence of their status.

U.S. citizens and lawful permanent residents should never be incorrectly subjected to mandatory detention. Proof of their status should be readily available so that their release or removal can be expedited without the usual interference by lawyers and others. There should be no reason why a long period of detention should be needed to prove they are not deportable from the United States. If the law is so complex in this area, it must be simplified.

Detention of those who appear to be here illegally is an essential part of border security and an exercise of national sovereignty. Prompt adjudication and humane treatment should be the sole concerns of Amnesty International. Any other approach is suspect and should be rejected as interference in the internal affairs of a sovereign nation.

Those who are arrested should never be freed on bond because history shows that those who are simply disappear and are never seen again. The risk of flight is too high for these miscreants who have nothing to lose except the cost of the bond. Many Chinese arrive with enough money to pay the current bond requirement because they know the system. They simply forfeit the bond and disappear having achieved their basic objective of illegal entry and relative safety, absent vigorous and continuous internal enforcement.

Occasionally U .S. citizens and lawful permanent residents have been incorrectly subject to mandatory detention. That situation needs to be fixed as soon as possible but we must remember that no system is perfect and there will be infrequent errors. All detainees should be permitted to present any evidence they have that they are not deportable but that evidence should be forthcoming and available easily within a week.

A single case of a man who was born in Minnesota and placed in immigration detention in Arizona was cited. He was unable to access his birth certificate because he was in detention and ended up working for $1 a day in the prison kitchen to earn the $30 necessary to order a copy of his birth certificate. Detainees should keep their vital papers in a readily accessible location and each detainee should be allowed at least one phone call to obtain their quick delivery. E-verification in detention facilities should easily resolve most of the problems of citizens who have legitimate social security numbers.

Detention facilities for those apprehended without proof of status must provide adequate medical care, be free of excessive restraints, and should not be used for people accused of or imprisoned for criminal offenses.

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