America’s broken immigration system

Obama says immigration reform must wait until 2010. Until then, the inhumane detention of immigrants will continue

• • Wajahat Ali
  • guardian.co.uk, Thursday 13 August 2009 17.00 BST

While attending the a North American summit with leaders of Mexico and Canada, Barack Obama stated that no comprehensive immigration reform would occur before 2010, thus ensuring a commitment to the highly ineffective, unjust and draconian policies of the US immigration system that needlessly treats immigrants as scapegoats to appease unfounded national security concerns.

With the pressing financial crisis and healthcare reform dominating the president’s attention, Obama pledges a sincere attempt to eventually overhaul the system allowing a “pathway to citizenship for millions of illegal immigrants” in a way that “avoids tensions with Mexico” while acknowledging the process “is going to be difficult”.

Perhaps impossible might be more accurate considering that George Bush’s attempts at immigration reform, which were surprisingly progressive and pragmatic, failed twice. Even John McCain was forced to renounce his immigration policy to win paranoid voters terrified by an over-exaggerated threat of the brown, illegal immigrant menace.

Individuals such as Tom Tancredo, the former Republican congressman, bartered fear-mongering for votes, stating that illegal immigrants “need to be found before it is too late. They’re coming here to kill you, and you, and me and my grandchildren.” CNN’s Lou Dobbs, whose credibility is forever nullified by his advocacy of the “birthers”, routinely terrifies middle-class America about the immigrant threat with specials such as Exporting America, Broken Borders and War on the Middle Class.

Similarly, the Democrats are culpable for feeding the hysteria by enacting the brutal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 under Bill Clinton. The act requires mandatory detention of immigrants and lawful permanent residents with criminal convictions throughout their immigration proceeding, despite the fact that most of these individuals have minor offences, such as drug possession, and are neither major safety threats nor flight risks.

As a result, the federal government now holds more than 32,000 detainees, which is nearly five times the number of detainees in 1994. Nearly 19,000 of these detainees have no criminal records, over half do not have attorneys and many have been detained for more than a year, despite the US supreme court ruling in Zadvydas v Davis that the US immigration and customs enforcement (ICE) has six months to release or deport immigrants after their case is decided.

The budget for detaining immigrants has nearly doubled, costing taxpayers $1.7bn. This statistic should factor into the next rightwing tirade when deciding whom to properly blame for burdening the economy and hurting the middle class.

Echoing the sentiments of most immigration experts, Kevin Johnson, Dean of UC Davis School of Law and author of Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws, concludes the current system is “broken”. Johnson told me the key question for Obama is “how to come up with a legally enforceable system of detention in which there is checks and balances. The administration has refused to promulgate an enforceable rule or regulation [for immigration detention].”

Despite the overwhelming evidence and recommendations of immigration reform advocates, John Morton, the head the ICE, pledged a commitment to large-scale detentions but added: “It needs to be done thoughtfully and humanely.”

As a result of the current immigration policy, overpopulated, remote detention centres house immigrants who are denied meaningful contact with their lawyers, access to legal resources to fight their case, proper medical care and contact with family members.

Currently, most detainees are rarely afforded an opportunity for an individualised bond hearing, where a neutral judge can assess the constitutionality and necessity for their detention. As a result, they languish in remote detention centres with atrocious living standards. Furthermore, nearly 90% of detainees cannot afford an attorney due to extreme poverty. Thankfully, non-profit legal organisations such as The Florence Project of Arizona provide free legal services to individuals detained by the ICE.

Holly Cooper, head of the Immigration Law Clinic of the UC Davis School of Law, told me: “The current system is such a train wreck that the Obama proposal will not stop the immediate crisis.” She related a story from one of her clients: “[Detained] individuals are affected in ways that I can’t describe in words. One of my clients said it was as if he was dead for the five years he was detained and has decided to deduct the five years of detention from his age.”

Thankfully, a federal judge recently recognised this madness and ruled that two immigrants, who have been detained for 20 months and nine months respectively, were entitled to a hearing to determine if their constitutional rights were violated by unnecessarily prolonged detention.

Ultimately, the Obama administration must seriously commit to immigration reform that ensures that ICE and DHS comply with sensible and fair regulations which afford individuals rights that are currently detained by an inefficient and morally bankrupt system.

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