Reliance on Immigration Detention Is Trapping Us All  

COMMENTARY

I was sitting in church a few Sundays ago and, as is often the case, during a quiet moment, my mind turned to work.

Then, the congregation stood up and we began singing the hymn, “I’ll Fly Away.” The line that I love is, “like a bird from prison bars has flown, I’ll fly away.” This line is a balm to my soul because in my role as policy counsel, I spend my days grappling with the problems of U.S. immigration detention.

I cling to this line even more so as the most recent data shows that we have returned to pre-COVID immigration detention numbers and the private prison companies operating many of these facilities are enjoying high revenues.  

For non­–church going folks, the hymn “I’ll Fly Away” is featured in the 2000 film “O Brother, Where Art Thou.” The film is set in rural Mississippi during the 1930s and it is a story of love and forgiveness as three escaped convicts search for hidden treasure. The film is loosely based on Homer’s epic Greek poem “The Odyssey.” 

It has been my experience that every person in detention, whether for criminal or civil purposes, has a story to tell. The migrants who travel thousands of miles to seek the promised land of America? Yes, their stories are epic.

Many of their stories of survival against all odds would floor you and some of their experiences would break even the coldest of hearts. In short, we place some of the most weary, traumatized and burdened people in immigration jails to ensure they show up for court hearings or asylum interviews at a steep financial and moral cost.

This policy choice is in no way supported by empirical data that shows immigrants don’t appear for court hearings or that appearance rates increase when they have a lawyer.  

Detention is also used to facilitate quick removal of migrants on the premise that they are not eligible for asylum or don’t have the right to stay in the United States.

This is flawed because fairness requires that we not pre-judge people’s cases based solely on their national origin or the language they speak.

This fast-track process is known as “expedited removal” and the Biden administration, confusingly, seems to count the increased numbers of migrants subject to expedited removal as a success.

While authorized by the law, the expedited removal process is plagued by due process problems. Not the least of which is that most migrants will never get a chance to speak to an attorney or get legal advice before they are deported. Instead of giving people access to a fair process, we condemn them before they have even had a chance to plead their case.  

It’s also worth noting that we do not detain only recent arrivals in our detention facilities.

Immigration and Customs Enforcement has broad discretion to decide who to detain. For example, longtime residents and people who served in the armed forces of this country can be detained.

A few years ago, Congress started to require ICE to disclose how many U.S. citizens they have detained, too.

Generally, ICE officers are supposed to detain individuals who they deem a flight risk, a threat to public safety or are subject to so-called “mandatory detention.” There are also enforcement priorities currently in effect that direct ICE to focus their efforts on certain categories of individuals.  

The “process” of deciding who is a threat is nothing to really hang your hat on. It is typically just the judgement of an individual ICE officer, often triaging multiple cases at once and with the pressure of filling beds that the United States pays for, regardless of whether they are used. 

So, take the notion that detention keeps American communities safe with a grain of salt.

Indeed, many of the men in detention are more likely trying to reunite with their family than planning to threaten yours.  

I am often asked, what should we do instead of detention?

I think that’s the wrong question.

Yes, many alternatives to detention exist to mitigate flight risks like cash bond and relinquishment of passports. Release with strict reporting conditions is another option, as is the other end of the spectrum, like community-based case management to help people meet their immigration obligations.

However, we first need an acceptance that detention at the current massive scale is not necessary and serves the interest of private companies, not the American people.

We all, especially Congress, need to uncage our preconceived notions and free ourselves from this expensive, wasteful and harmful fallacy.

Jennifer Ibañez Whitlock has spent her professional career working in immigration law and policy. Currently she serves as supervisory policy and practice counsel for the American Immigration Lawyers Association, focused on immigration enforcement and humanitarian processes. Previously, she worked with the Immigration Justice Campaign, a joint project of AILA and the American Immigration Council, where she oversaw a pro bono program for detained immigrants. Before transitioning to nonprofit work, she was in private practice, focused on family-based immigration, humanitarian relief and deportation defense. She can be reached on LinkedIn.