On International Migrants Day: #FreeThemAll

Immigration and Customs Enforcement manages the largest immigration detention infrastructure in the world. Over the last year, however, the number of people being held in detention has plummeted, from 53,000 in October of 2019, to 16,075 at the beginning of December 2020. This collapse has been driven by two factors: The closure of the border under a public health order issued by the Center for Disease Control and Prevention, which has led to the summary expulsion of just over 330,000 people since March – some portion of these people would have been redirected to ICE custody under “normal” circumstances. The second factor is ongoing deportations, which, though slowed slightly from April to July, have never been suspended despite multiple calls from medical professionals, human rights groups and others for a moratorium on deportations until the pandemic has ended.

As a result, the number of people being held in immigrant detention right now is at the lowest level it has been since Bill Clinton was president. While ending immigrant detention is surely a complicated proposal politically speaking, logistically there may never be a better time to transition people to various alternatives to detention – programs that are already well documented to be effective and far less expensive. As COVID-19 is still ravaging detention facilities, there is also an immediate human rights imperative to get people out – one that the Trump administration has ignored. So, now is the time. Empty these facilities. Review, phase out and cancel these absurd contracts that allow private companies to profit from detention – even when the beds are empty.

If we do not change course soon, the unused capacity in the system represents a serious threat, presaging a quick return to record detention levels. The Biden team is considering ending the Trump administration’s Migrant Protection Program and canceling Asylum Cooperation Agreements with Guatemala, Honduras and El Salvador. He has not committed to ending Title 42 expulsions, but will certainly be under pressure to do so. Biden should do all of these things. However, this also means an increase in the number of people entering the country. Biden has suggested that he wants to reduce detention and rely on alternatives. However, given the political climate, the danger is that Biden’s administration will end up relying on the unused capacity in the detention system to warehouse people while his team figures out what to do with the increase in asylum seekers. Once he goes there, it will be hard to backtrack. Of course, at $3.8 million a day one could hire quite a few new asylum officers to process claims at the border, rather than lock people up. As things stand, Biden’s transition team is already looking for expanded detention capacity for unaccompanied children in the parallel, though distinct, detention program for minors run by the Office of Refugee Resettlement

In considering whether or not to end immigrant detention it is worth pointing out that it has been ended before. Eisenhower shuttered immigrant detention facilities in 1954 – largely due to cost, but in doing so he also highlighted how the practice had cast the U.S. in a negative light overseas. Between 1954 and 1980 immigrant detention was used in very limited circumstances; there was no permanent detention infrastructure. Rather the government utilized space in other federal or state facilities for the handful of beds needed on any given night. All of this began to change in the early 1980s in response to a spike in immigration from the Caribbean region, especially Haiti. Unwilling to let Haitian asylum seekers into the United States, the Reagan and Bush administrations dramatically expanded the use of immigrant detention, and employed a variety of extra-territorial measures to interdict Haitians at sea, giving them cursory asylum hearings on ship before sending them back. Thanks to immigration legislation passed under Clinton’s watch, detention rates nearly tripled in 1990s – and, in the process, was made profitable for private companies. It has continued to grow ever since. Until COVID-19.

It is time to stop. We know that detention is unnecessary. It is also demonstrably managed badly when done for a profit. Detention leads to well documented cruelty (not to mention the enormous waste of funds noted above). Public health officials have repeatedly demanded massive releases during the current pandemic because of the danger to people being detained and facility staff. Alternatives work. We can get everybody out. We just need a commitment to do so.

What better time than now?!

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