Special Facilities and Populations - Immigrants In Confinement

Since the passage of the Immigration and Nationality Act of 1965, which eliminated a quota system based on country of origin, immigration has risen in the United FIGURE 10.1
Immigrant population by world region of birth, 2003
SOURCE: Luke J. Larsen, "Figure 1. Foreign Born by World Region of Birth, 2003," in The Foreign-Born Population in the United States, 2003, U.S. Census Bureau, August 2004, http://www.census.gov/prod/2004pubs/p20-551.pdf (accessed March 31, 2005) States. In 1960 the foreign-born population of the United States stood at 9.7 million, and the foreign-born comprised 5.4% of the U.S. population. By 2003, according to Luke J. Larsen in The Foreign-Born Population in the United States: 2003 (Census Bureau, August 2004), the foreign-born numbered 33.5 million and represented 11.7% of the population. In 1960, 75% of the foreign born were of European origin, with another 9.8% from Canada. By 2003 people born in Latin America represented 53.3% of the foreign-born and Asians 25%; those of European origin had slipped to 13.7% of all foreign-born. (See Figure 10.1.)

As legal immigration increased, so did illegal entry, mostly from Latin America. In 2000 about 4.8 million illegal aliens, 68.7% of the total, were from Mexico (Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, U.S. Citizenship and Immigration Services, http://uscis.gov/graphics/shared/aboutus/statistics/Ill_Report_1211.pdf). One response to this problem was the Immigration Reform and Control Act of 1986, which enabled some illegal aliens to obtain lawful permanent residence. The Immigration Act of 1990 increased the overall number of legal immigrants admitted. Midway through the 1990s, opposition to immigration, particularly to the presence of illegal aliens, began to focus around the issues of jobs taken by illegal aliens and tax dollars expended on the education, health care, and maintenance (through welfare expenditures) of illegal aliens. Some activists also pointed to the strain on the environment of so many additional people entering the country every year. Since 1996 Congress has generally pursued a policy of immigration reform ranging from beefing up border controls to strengthening court authority over illegal aliens. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 signaled the turn in policy. According to John Scalia and Marika F. X. Litras in Immigration Offenders in the Federal Criminal Justice System, 2000 (Bureau of Justice Statistics, August 2002), the law authorized an increase in the number of law enforcement officers from 12,403 to 17,654. Two-thirds of the new positions were assigned to border patrol, and states that received these new officers noted a 75% increase in the number of cases referred to U.S. attorneys for immigration offenses.

One of the aims of Congress in the 1996 act was to remove illegal immigrants from the country rapidly and without long processes of judicial review—a policy that would later be reaffirmed in the USA Patriot Act of 2001. The 1996 act's chief focus was on the entry of illegal aliens, not terrorism, and also on U.S. citizens engaged in smuggling aliens into the country.

Responsibility for the security of the nation's borders was handed over to the newly created Department of Homeland Security in November 2002. Subsequently, the U.S. Immigration and Naturalization Service became part of the U.S. Bureau of Immigration and Customs Enforcement (ICE). A shift in emphasis occurred after the terrorist attacks of September 11, 2001. The new policy was announced by Attorney General John Ashcroft in a September 18 press briefing. Ashcroft announced that the twenty-four-hour detention rule, in place before the policy changed, would be doubled to forty-eight hours, "or to an additional reasonable time if necessary under an emergency or in other extraordinary circumstances" (quoted by CNN.com, "Rules for Aliens Changed, Anti-Terrorism Task Forces Established"). This policy, later formalized as part of the USA Patriot Act, was signed into law on October 26, 2001, giving the government the power to hold immigrant terror suspects or those immigrants suspected of aiding terrorists for longer periods.

The policy change is evident in data that record persons detained under ICE auspices (rather than referred to U.S. attorneys, although these numbers overlap). In the category of detained persons, numbers have increased dramatically. In 1995, 8,177 persons were detained. By yearend 2003 the number had increased to 23,514. (See Table 10.7.) Of these detainees, according to Prisoners in 2003, 12,603 had been convicted of criminal offenses. Violent offenses accounted for 31.7% of the convictions and drug offenses another 29.5%. Federal and state TABLE 10.7
Bureau of Immigration and Customs Enforcement (ICE) detainees, by type of facility, yearend 1995, 2002, and 2003
SOURCE: Paige M. Harrison and Allen J. Beck, "Detainees under the Jurisdiction of the Bureau of Immigration and Customs Enforcement (ICE), by Type of Facility, Yearend 1995, 2002, and 2003," in Prisoners in 2003, Bureau of Justice Statistics, November 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/p03.pdf (accessed March 31, 2005)

	Number of detainees			Percent change, 2002–03
Facility type	2003	2002	1995
Total	23,514	21,065	8,177	11.6%
ICE*-operated facilities	5,109	5,087	3,776	0.4
Private facilities under exclusive contract to ICE	1,935	1,936	652	−0.1
Federal Bureau of Prisons	1,338	1,100	1,282	21.6
Other federal facilities	88	130	181	−32.3
Intergovernmental agreements	15,044	12,812	2,286	17.4
State prisons	477	453	8	5.3
Local jails	11,376	9,764	1,984	16.5
Other facilities	3,191	1,595	294	23.0
*ICE = Bureau of Immigration and Customs Enforcement

prisons and local jails housed 15,044 of the detainees and 5,109 were held in ICE-operated facilities.

The Patriot Act is controversial because it gives the government powers of surveillance that some people believe violate their right of privacy. In the context of prisons and jails, the act's Section 412 concerns mandatory detention of suspected terrorists. (A copy of the act is available on the U.S. Citizenship and Immigration Services Web site at http://uscis.gov/graphics/lawsregs/patriot.pdf.) Section 412 gives the Attorney General the power to "certify" that an alien is engaged in an activity that endangers the national security of the United States. The intent of the legislation is that a certified person be held until removed from the United States. The Attorney General must either charge the person with a crime or place the person "in removal procedures." But if removal is "unlikely in the reasonably foreseeable future, [the person] may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person." The act provides for judicial review of the Attorney General's actions by the U.S. Supreme Court or federal district courts. Unless courts overrule the Attorney General's judgment, circumstances can arise under which an alien can be held indefinitely, always for successive six-month periods.

Other Foreigners under Detention

A related issue of detention is the federal government's confinement of persons at the U.S. military base in Guantanamo Bay, Cuba, as "unlawful combatants." These persons, captured during the conflict in Afghanistan, are held under a presidential order issued November 13, 2001 ("President Issues Military Order," The White House, http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html). According to the order, such individuals are in the custody of the Department of Defense and are to be tried, when tried, by military commissions rather than in U.S. district courts. This order has been controversial because some see it as an attempt to circumvent the legal protections offered to prisoners by the conventional U.S. legal system and by international treaties regulating prisoners of war.

The lengthy detention of such prisoners has also been the subject of much controversy. In April 2004 the Department of Defense acknowledged that there were approximately six hundred such individuals still being held at Guantanamo. In a public statement addressed to the UN Commission on Human Rights on April 20, 2004, Amnesty International charged:

International law has been flouted from the outset. None of the detainees was granted prisoner of war status nor brought before a competent tribunal to determine his status, as required by the Third Geneva Convention. None has been granted access to a court to be able to challenge the lawfulness of his detention, as required by the International Covenant on Civil and Political Rights (Article 9) to which the United States is a party. Detainees have been denied access to legal counsel and their families.

According to the U.S. government, as unlawful combatants, these detainees are not guaranteed legal assistance and do not have to be charged with a crime. They may be held indefinitely for interrogation.