THE MANAGEMENT OF ILLEGAL IMMIGRATION THROUGH IMMIGRANT DETENTION AND THE EXPERIENCE OF APPLYING FOR RELIEF WHILE DETAINED by DENISE A. CHANG B.A. San Jose State University, 1990 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Social Sciences Social Science Program 2018
ii Â© 2018 DENISE A. CHANG ALL RIGHTS RESERVED
iii This thesis for the Master of Social Science degree by Denise A. Chang has been approved for the Social Sciences Program by Jana Everett, Chair James Walsh Sarah Horton Date: May 12, 201 8
iv Chang, Denise A. (MSS, Social Science Program ) The Management of Illegal Immigration Through Immigrant Detention and the Experience of Applying for Relief While Detained Thesis directed by Professor Jana Everett ABSTRACT Since 1920, the legal position of undocumented immigrants has devolv ed from As the perceived threat level has increased, so has the use of a prison like immigrant detention system to manage unwanted populations until they can be removed . This paper examines the ways in which immigration law, current pol icy, public opinion, detention processes, court procedures, and physical isolation converge to not only expedite that removal , but also to hinder and even deter those under removal orders from adequately presenting a case for relief in immigration court . B ecause the real, lived consequences of those laws and policies are experienced far from the view of those who make the laws, this thesis seeks to provide a window into the fraught process of preparing an appeal for relief from deportation within the limita tions of detention. The form and content of this abstract are approved. I recommend its publication. Approved: Jana Everett For those who have risked all for a better life, and lost. Acknowledgements COMIRB Protocol #17 1569
v TABLE OF CONTENTS CHAPTER I. INTRODUCTION ................................ ................................ ................................ ........ 1 Executive Order on Interior Enforcement ................................ ................................ ...... 1 Overview of the Literature: Current Discussion Regarding Immigrant Detention ................................ ................................ ................................ ........................ 5 Overview of this paper ................................ ................................ ................................ . 13 II. ORDER ................................ ................................ ................................ ........................ 17 Overview: Priorities, Strategies and Agencies ................................ ............................. 17 ................................ ............................ 19 World War II: The Formalization of Detention ................................ ........................... 24 The Cold War Years: The Legal Creation of Criminal Aliens ................................ .... 25 ................. 29 Post 9/11: From Criminal Aliens to National Security Threat ................................ .... 44 The 2018 Status of Undocumented Immigrants ................................ .......................... 51 Conclusion ................................ ................................ ................................ ................... 53 III. THE CURRENT SITUATION OF IMMIGRANT DETENTION ............................. 55 Introduction: The Recent Demand to Increase Bed Capacity ................................ ...... 55 Theoretical and Actual Basis for Mandated Detention ................................ ................ 57 Organization of the Detention System ................................ ................................ ......... 64 Preparation for Immigration Court ................................ ................................ .............. 71 Types of Cases That Can Be Presented by Detainees ................................ .................. 77
vi Conclusion ................................ ................................ ................................ ................... 87 IV. METHODOLOGY : A PPROACH, METHODS AND DESIGN ................................ 8 8 Necessity of Multiple Ap proaches ................................ ................................ ............... 88 The Interview Project ................................ ................................ ................................ ... 89 Conclusion ................................ ................................ ................................ ................. 105 V. DATA ANALYSIS ................................ ................................ ................................ .... 107 Introduction ................................ ................................ ................................ ................ 107 Ali ................................ ................................ ................................ .............................. 108 David ................................ ................................ ................................ .......................... 110 JosÃ© ................................ ................................ ................................ ............................. 113 Caroline ................................ ................................ ................................ ...................... 116 Emad ................................ ................................ ................................ .......................... 119 Carlos ................................ ................................ ................................ ......................... 123 Conclusion ................................ ................................ ................................ ................. 126 VI. CONCLUSION ................................ ................................ ................................ ................ 128 VOCABULARY ................................ ................................ ................................ .............. 132 REFERENCE S ................................ ................................ ................................ ........................... 13 5
1 CH APTER I INTRODUCTION Executive Order on Interior Enforcement On January 25, 2017, newly elected President Trump issued Executive Order 1376 8 , Interior of the United S tates (hereafter referred to as the It defined how the new Administration interpreted existing immigration law and directed Immigration and Customs Enforcement (ICE) on how to enforce those policies within the interior o f the Uni ted States. The Order significantly expanded the mandate of ICE to arrest and detain all individuals suspected of being in violation of federal immigration law , demanded expedited processing of their claims of eligibility to r emain , and ordered a deportation for those who were found ineligible (Trump, 2017) . Since the creation of ICE in 2003 , major policy directives directing interior enforcement including the 2003 Fugitive Operations Program (Bush, Jr.) and the 2008 Secure Communities Program (Bush, Jr. and continued by Obama) at least claimed to reject mass deportations and to prioritize attention to convicted criminals and fugitives. While their success or failure in adhering to th at priority will b e discussed later, this Order was significantly different in t hat it called for mass deportation without consideration given to individual circumstances or to whether a crime had been committed. The action therefore directly threatens all of an estimated 11.1 million people currently livin g in the United States without legal status , representing about 3.5% of our total population (Passel, Cohn, & Krogstad, 2016) . Immigration and in particu lar undocumented immigration is a hotly contested issue in the United States, not only on the national political stage, but also as states and municipalities decide how they will or will not comply wit h federal law. It is also an
2 important issue at the local level , as neighbors grapple with the changes occurring within their communities as new and unfamiliar groups of people settle in their neighborhoods. Those who welcome immigration and those who feel threatened by it find themselves at odds with each other, and both groups are increasingly public ly vocal about their opinions both in the media and to their political representatives. 1 President Order is not novel. The policies are based have been more than a century in their creation . T hey not only enumerate the requirements, systems and limitations for legal immigration, but also define the consequences and enforcment actions that can be taken against those who sett le here without authorization. Executive direction regarding the severity and focus o f immigration law enforcement has varied from administration to administration, usually as a reflection of public opinion and pressure as a res ult of both domestic and interna tional conditions. However, over the last century , the legal position of undocume nted immigrants has steadily devolved from worker , to alien , to criminal alien to national security threat . It is within the context of this last position that President Trump s unusually harsh Order appears. And yet, in spite of the difficulties, the forces that drive human migration have proven themselves stronger than both the law and public opinion , as the estimated 11 .1 million undocumented residents i n the United States demonstrate . As of 2018, it has been more than two decades since any significant piece of immigrat ion legislation had been passed and the nationa l conversation on the subject is growing. As of this writing, 120 bills have been introduced to Congress for the 115 th session 1 A search of the New York Times for the year 2017 found 764 articles mentioning in this single newspaper .
3 (2017 2019) that address border security and unlawful immigration (Civic Impulse, LLC, 2017) . Both local and national politicians usually have a plank in their platform stating their position on the issue, a nd campaign aggressively on it to their very interested constituencies. L ocal communities are responsive and engaged with public demonstrations, editorials, social media activity , and interest group campaigns. Arguments promoting stronger enforcement of current laws on one side and reforming the immigration system on the other engage such important values as national sovereignty, respect for the law, public safety, promotion of a healthy economy, international responsibility, cultural values, compassion, individual rights, and most of all, differing ideas of what it means to be an American. Even though at times it seems like everyone is talking about the issue of illegal immigration and everyone has an opinion, little is actually heard from the very people at the center of the converstation the undoc umented immigrants themselve s. Living in the shadows and fearful of bringing any attention to their pecarious live s and vulnerable families, their voices t he voices of those who are most injured by the policies currently embraced by this administration are rarely heard public ly, but they deserve a place in the public forum. American citizens should not be shielded from understanding the very real consequences of our laws and the actions of our elected officia ls on the lives those who share our communities. One place where unauthor ized immigrants do resist the national discourse about them and speak on their own behalf is in immigration court, af ter they have received a Notice to Appear or have been arrested on any of a variety of immigration violation s and/or criminal charges. Non citizens have few rights, but they do have the right to fight their deportation by formally pres enting their case before an immigration judge , to hire an attorney at their own expense, and to have access to some basic resources necessary to do so . Dete ntion, however,
4 is a very difficult plac e from which to prepare a case: the obstacles they face are daunting, and the failure rate is very high. The process often involves lengthy periods of incarceration in the obscure world of (usually) privately run imm igrant detention facilities and the navigation of a complex and poorly understood system of immigration law without the benefit of necessary language skills, reliable access to relevant information, or the means to secure legal representation. This thesis intends to illuminate the lived reality of applying for relief from deportation from the situation of detention. It will specfically look at the following questions: 1) Why have the detainees chosen to pursue the specific cases that they do? 2) What resources have they used or not used as they present their cases, and why? 3) What obstacles to presenting their case s have they faced? Detention based appeals for relief have received very little attention either in academic literature or in media of any kind. The maj ority of appeals fail, and the detainees ar e deported without their experie nce being exposed to any kind of public scrutiny. This not only silences their voices, but it also denies society the understanding of how our laws are being enforced, or even wheth er they are being enforced properly. On a national level , t he personal stories of those detained and the cases they present to judges about why they should be allowed to remain in the United States legally to pursue becoming American are a powerful challenge to the exclusionary direction our policy has taken in recent years and a call to create a fairer and more just system of immigration law that addresses the pressures and realities of our interconnected position in a globalized world.
5 Overview of the Literature : Current Discussion Regarding Immigrant Detention P opular discussion surrounding the political and social issue of undocumented immigration tends to circle around labor issues, criminal activity, and consumption of resources . for who deserves to be admitted or not, to justify the need for deport a tion , or to decry the consequences of deporation. In the political science world, scholars and researchers discuss the increasing use of criminal charges and systems at both the federal and state levels to detain undocumented immigrants in preparation for (Stumpf, 2006) to describe the process. One of the most powerful tools to do so is the enactment of mandatory detention laws for a lengthy a ggravated felonies Many of these so aggravated only apply to non citizens, thus exposing this segment of our population to arrest, detention, and deportation. Among human and immigrant rights activists, it is the conditions endured by detainees, particularly in privatly run facilities, that generate much of the concern about the subject of immigrant detention, as they continually attempt to force compliance with both national and international law. While deportation is a widely known consequence of living in the United States without legal status , the role that detention plays in that process is largely unknown by the general public. This lesser known stage is a very obscure world, hidden from public view, and complicated in its struct ures and functions, and therefore it is very rare for the issue of immigrant detention to appear in media o r even in academic literature. Researchers attempt to gain some insight into the detention process by examining D epartment of H omeland S ecurity activ ity reports, statistical analysis released by the Transactional Records Clearing House (TRAC) managed by Syracuse University, official govern ment records, lawsuits filed
6 by former and current detainees, and int erviews with former detainees. While these are quite useful, they are limited in that l ittle more than general statements can be made about trends, irregularities, and human and civil rights abuses. (Bosworth & Kaufman, 2011) . Not much is known about the lived experience inside by those who are confined. I t must be noted that those detainees who have been released and whose testimony is so vital to understanding what happens inside detention centers most likely have had lawyers who advised them of their rights, offered som e protection from abuse, and guided them through the le gal processes that they faced. However, o nly 14% of detainees currently m anage to secure legal counsel. For the remaining 86% who cannot , the chance of receivin g the relief they seek is only 23% (Eagly & Shafer, 2016) . The vast majority are deported before they have any opportunity to discuss their experience, and in particular, the obstacles the y faced without protection or assistance. It is into this largely unknown space that this thesis seek s to shed some light, particularly by exposing the challenges faced by non citizens who attempt to file cases for relief from deportation from the situation of detention. Probably the most important concept within the conversation surrounding crimmigration First coined by Juliet Stumpf (Stumpf, 2006 ; GarcÃa HernandÃ©z, 2015) , the ter m broadly refers to the convergence of the fields of criminal law and immigration law, historically separate systems . CÃ©sar CuauhtÃ©moc GarcÃa HernandÃ©z has written extensively on current legal realities of this merger and describes the concept this way: Criminal procedure norms embodied in court rules and constitutional amendments have made special allowances for immigra t ion law enforcement concerns and the citizenship status of defendents. Meanwh ile, immigration law now freque ntly turns to
7 government decides wh deportation, and its close cousin, ex clusion from the United States (GarcÃa HernandÃ©z, 2015) . In recent years, he has argued for the abolishment of immigration detention c enters, particularly those run by privately contracted, for profit compa nies such as GEO Group, including the Denver Contract Detention Facility, the subject of this research project. Mae Ngai, a prominent immigration historian based at Columbia University, takes a less extreme approach, examining the social forces, racial attitudes and historical events (from 19 24 to 1965) that shaped the laws that we have today. Her work is particular ly useful in contrasting the use of detention before 1986 with current trends. Recognizing that nineteenth and twentieth century theories of power rooted in the belief in the sovereignty of the nation state to defend itself were central to the formation o f current policy and continue to be influential, she argues for a more moderate approac h to immigration reform. Rather than directly challenging the right of the nation to determine who belongs and who can be expelled, she suggests that the historical reas ons for creating the laws should be re examined in light of current ideas of individual rights and the global forces that drive migration, and altered to reflect mo re modern legal and moral norms (Ngai, 2004) . Juliet S tumpf m that crucial period beginning in continuing today which marked a dramatic expansion of the immigration consequences of criminal law violations . She points out that in parallel to criminal incarcer ation, immigrant detention has recently seen a sharp rise in use in recent years as categories of immigrants subject to detention have been expanded, relief options have narrowed, and length of time spe nt in detention has increased. Her work focuses specifically on how and why the se two fields of law continue to merge, drawing heavily on Membership
8 Theory 2 to posit that society is actually using criminal law to permanently remove those . By positioning c riminal law and immigration law as tools in the hands of society, she is able to challenge the perceived benefits of e xercising sanctions on offenders that exclude them from society . Finally, she presents the argument that an increasing ly stratified society, wit h a growing actually weakens the whole , rather than creating the safer and more prosperous sociey that immigration law claims to be its goal (Stumpf, 2006, 2013) . e who belongs and who does not is further explored by Jennifer ChacÃ³n , who focuses her attent ion on the more recent and growing number of laws and enforcement practices enacted at the state and local level s , effectively transfering f ederal powers to sub fe deral authorities . primarily criminal provisions to indirectly regulate migration. States and localities often have been forthcoming about the fact that these provisions are designed to affect immigration, for example by achieving attrition [of unauthorized migrants] through enforcement of these laws. Rather than striking all of these laws down as impermissible, however, the courts have given states a surprising amount of latitude to regulating noncitizens through substantive criminal la ws and criminal law enforcement (ChacÃ³n J. , 2012, p. 617) . Because states and localities do not technically have any power to regulate migration it has been traditionally a federal power only criminal law must be used if society itself wishes to indirectly control who is and who is not allowed to live and work in their communities. In the 2 In reference to The Morality of Consent (1975) by Alexander Bickel, Stumpf describes Membership Theory as a means of understanding how society divides itself into those who operates in this new area to define an ever expanding group of immigrants and ex offenders who are denied badges of membership in society such as voting rights or the right to remain in the United States. Membership theory manifests itself in this new area through two tools of the (Stu mpf , 2006 pg. 377 378 )
9 5 year period between 2013 and 2017, states enacted 1,772 laws and resolutions regarding immigration issues (National Conference of State Legislatur es, 2018) , demonstrating the increasing authority local communities are taking ove r their non citizen populations via domest However, the power to detain and deport still remains in the ha nds of the federal government. ChacÃ³n brings federal immigration policy into the present, when terrorist attacks such as 9/11 resulted in a reconfiguration of enforcement practices that examined all immigrants undocumented or not through t he prism of national security. Of particular provide a legal means of arresting, detaining, and deporting those in the country without authorization , and at the same time limiti ng prosecutorial discretion as a means of relief. The vigorous enforcement practices that resulted have generated numerous legal challenges regarding civil and human rights violations, a rapidly swelling detention system, and immigration court backed up fo r years into the future (ChacÃ³n, 2013) . Mandated Detention Philip Torrey lays out the history of immigrant detention, leading up to the enactment of early to mid , which made detention mandatory for a significantly expanded list o f crimes (including minor offens es), ex tended the reach of mandatory detention to include both unauthorized immigrants and legal permanent residents, and limited the options for judicial rel ief (Torrey, 2015) . As a result, detentions have increased by more than 1,600 % since 1995, when only 8,793 people were
10 arrested for immigration violations from the interior of the United States 3 (Immigration and Naturalization Service, 1999) . As of 2015 , United States immigrant detention was widely believed to be the largest system of its kind in the world (Torrey, 2015) . In 2017 alone, Enforcement and Removal Ope adult detention facilities (U.S. Immigration and Customs Enforcement, 2017) 4 . As ICE plans to continue to increase its operations to meet the mandate of the above Orde r, ERO has requested a budget of $4.86B for 20 18 to meet the p otential demand, anticipating the average daily population in detention to rise to 51,379 in 2018 (U.S. Immigration and Customs Enforcement, 2017) . It is a very big system, and the rising cost of facilities to house the large number of detainees and the lengthening backlog in immigration court to hear their cases demands that the federal g overnment consider alternatives to mandatory detention. Torrey otives for making such a drastic legal (Torrey, 2015, p. 890) . While D .M. Johnson expands on the detail of the underlying law, she disagrees on the cause , pointing to a surge in anti immigrant sentiment in an election year (Johnson D. M., 2001) as the most important factor . Several writers go further and argue that race plays an important role in the actu al selection of those groups targeted for detention. David HernÃ¡ndez, for example, examines the role of detention primarily through race, presenting it as the product u rity and anti immigrant sentiment. By portra ying 3 It is difficult to find detention statistics from before 1996. This number reflects the description that may most closely reflect the numbers he 4 This number of facilities used by ICE immigrant detention. The number used here is defined as subcontracted for holding detainees, but not officially operated by ICE.
11 acceptable way (HernÃ¡ndez D. M., 2013 ; Patler & Golash Boza, 2017) . His arguments bring renewed validity to the question of the role of race in light of the Presid ent s repeated explanations for the harshness and expansiveness of his Order that suggest race as a factor (Trump D. , 2016) . In addition to the societal pressures that resulted in the expansion of detention in the commonly accepted explanations for the use of detention in the United States have been offered by Former Chief Cou n sel of the U.S. Citizenship and Immigration Services (USCIS) Stephen Legomsky, and are directly or indirectly refer red to in much of the literature about immigration detention. The first two objectives assuring that the individual will not abscond but will actually be present at their court hearing , and the isolation of those considered a danger to the community cl early r eflect the merger of criminal and immigration law described by Stumpf and others . The third objective is to punish offenders in hope of deterring others from entering illegally (Legomsky, 1999) , an argument that began to advance in importance with the 1996 I legal Immigration Reform and Immigrant Responsibility Act. However, t his final argument is also in direct conflict with statements by the Department of Homeland Security , who insist that on a cr (Homeland Security Advisory Council, 2016, p. 12) have been unable to find any clear description of what those terms mean in practice. Whether or not immigrant detention is punitive and to what extent it compares in function and situat ion to criminal incarceration remains a heavily debated issue.
12 Roxanne Doty and Elizabeth Wh eatly expand on this third goal , returning to the discussion of national sovereignty . Drawing on Foucault, they identify undocumented immigrants as an undesirable population that is already physically present in society, whose must therefore position examined on a broader scale by Ma thew Coleman and Austin Kocher (Coleman & Kocher, 2011) and others. This undesir able population must be driven into submission because , in spite of the ambitious goal of the Executive Order , removing all 11 .1 million undoc umented immigran ts present in the United States is unfeasable due to the financial cost, manpower and infras tructure that would be required. Therefore, the detention and deportation of some serve to discipline the whole, in attempt to control the lives of all members of the (Doty & Wheatley, 2013) . Nicholas De Genova agrees with this assesment and reminds s ociety that this tactic has kept the Latino community in the United States in a state of vulnerability and submission for decades, and how the methods so familiar to this population have been expanded more recently to target Muslims, South Asians, and now, anyone without papers (De Genova, 2013) . Human Rights Violations Inside Subcontracted Private Detention Facilities It is within the the walls of immigrant detention that the theoretical discussions become very real. Currently, at least 65% of the population detai ned by ICE is held in privately contra cted, for profit facilities (Homeland Security Advisory Council, 2016) . This fact gives rise to significant criticism about the lack of public transparency and decreased federal oversight of the conditions and practices experienced by those inside (Doty & Wheatley, 2013) . Large , influential human rights organizations have made statements questionin g the extensive use of detention for non criminals, condemning it
13 as a violation of both human and civil rights, as well as a violation of the Department of (United Nations High Commissioner for Refugees , 2016 ; American Civi l Liberties Union , 2017) . Among the issues attracting attention in recent years are the lack of access to legal material (Dunway, 2017) , due proces s (Harvard Law Review, 2012) , blocking access to asylum petitions (Weissbrodt & Divine, 2016) , and many others (United States Commission on Civil Rights, 2015) . Overview of this Paper Chapter 1 of this paper has introduced th e Executive Order issued by President Trump on January 25, 2017 and identifies the distinct change it made to the interpretation and focus of current immigration policy. The aggressiveness of the Order has exposed more people to the possibility of interior arrest and deport ation , and detention centers are filling rapidly and even expanding to accommodate the increasing number of people who are appealing for relief from deportation in immigration courts. In recent years, academic literature has sought to cha llenge the merging of criminal and immigration law to prosecute discouraging future illegal m igration. This criminalizing of migrants combined with the opaqueness of the systems of detention have produced charges of human civil rights abuses as well as demands for greater transparency across the system. This paper draws heavily from legal critique s and analysis as well as the theory of crimmigration to further the idea that detention is actually a deterrent not only to future illegal immigration as is often discussed, but to the attempts made by to claim the ri ght to belong, to become legally American. In this time of renewed debate and national calls for
14 immigration reform, this paper challenges that lack of transparency and seeks to bring attention to the stories of detainees, focusing specifically on how they defend themselves in the face of negative national discourse and the obstacles they face in doing so. Chapter 2 will trace the development of immigration law over the last century, as it specifically pertains to national priorities and federal efforts to control and reduce the presence of undocumented immigrants in the interior of the United States. The above referenced Order itself takes its authority from the Immigration and Nationality Act s of 1952 and 1965 (INA), and the methods of enforcement that it advocates are drawn primarily from the Illegal Immigration Reform and Immigra nt Responsibility Act of 1996 (IIRIRA). As the punitive responses has grown, now reflected in popular support for the arrest and deportation of millions from their homes and communities across the United States (Suls, 2017) . Th erefore, this chapter will examine some of the more consistent and influential contending perspectives that contribute to the national discourse and resulting policy regarding undocumented immigrants and the place they hold in society . Those perspectives h ave been shaped by a number of historical, cultural and economic pressures that have changed over time, and m ay no longer even be relevant, but they remain in our national rhetoric and continue to influence policy today. Chapter 3 will focus on the poorly understood and very obscure world of immigrant detention, creating the context for the research study . This chapter will describe the size and scope of our detention system, highlighting the differences and similarities in purpose and function between so c
15 of ICE, detention is overseen by the office of Enforcement and Removal Operations (ERO), which in turn contracts private companies to provide both the facilities and staff to manage th process. Private detention centers have also drawn the attention of both national an d international organizations for their failure to adhere to international huma n rights standards and nationall y defined detention standards. Finally, this chapter will lay a foundational understanding of the processes that occur inside a single detention center the Denver including the daily life and systematic management of detainees, the types of cases detainees can pursue, and the resources and rights they can access as they do so. By presenting in detail the workings of one detention facility, this paper attempt s to illustrate h ow federal law, current policy , corporate compliance breaches, court backlogs, and isolation from resources work together to create an environment that severely discourages those designated for removal from mounting an effective defense as to why they should be allowed remain in the United States. Chapter 4 presents the approach, methods and design of the interview project that is at the focus of this paper. Using a qualitative, inductive approach, the researcher intended to conduct up to 50 semi structured interviews with detainees currently held in the Facility or recently released and staying at Casa de Paz, a privately run service organization that supports detainees, former detainees, and their families. Because there has been l ittle academic work published on the processes and obstacles experie nced by detainees as they pursue relief from deportation cases, this project is primarily exploratory in nature, focusing on their experiences with preparing and presenting their cases in immigration court, t he resources they were able to (or not able to ) access and use, and how and why they defended
16 their desire to stay in the United States Prisoners, including immigration detainees, are a highly vulnerable populati on, and the participants risked the exposure of potentially illegal activities before their cases were decided in court, necessitating extensive privacy protections. Every aspect of this interview project was scrutinized for ethical integrity and mitigatio n of risk, and these considerations are discussed at length . Chapter 5 will ana lyze the results of the interviews completed during the research portion of this project. Although few in number, the participants each prese n ted a unique case to immi gration court, add ing insight and understanding of the different processes and obstacles faced with each type of available relief. Each of the intervie ws were placed against a broader background of current events, observed immigration court proceedings, and my own personal interactions and casual conversations as I spent time inside the Denver Contract Detention Facility. T ogeth e r, t hey presented a platform with which to examine several of the complexities and recurring patter n s that currently play out in immigrati on court as the men and women there present their cases.
17 CHAPTER II LEGAL AND HISTORICAL BACKGROUND TO PRESI Overview: Priorities, Strategies and Agencies The laws from which this Order draws its authority can be better understood when placed within the historical, cultural, and theoretical context of immigratio n policy of the last 100 years. Ideas about racial distinctions, citizenship, and national sovereignty have contributed prominently to the creation of and subseque nt amendment s to our immigration system. Early immigration law was blatantly racist, focused on the admission or rejection of applicants based primarily on national origin. Later amendments to the Immigration and Nationality Act (INA) prioritized family re lationships, and to a lesser extent, labor requirements and humanitarian goals, as a means of allowing entrance to those deemed des irable an d excluding those who were not (Kandel & Wasem, 2016) . When it became clear that stringent standards for legal immigration were ineffective in preventing either illicit border crossings or remaining in the country when temporary visas expired, new laws and policies were developed to specifically investigate an d remove those who had entered and Over the last century, three main strategies have driven official efforts to reduce the numbers of undocumented immigrants and forcible removal (Bruno, 2014) . B order security is the largest and most visible of the three . T he funds, staffing, infrastructure, and technology employed in the prevention of clandestine crossings, particularly along the Mexican border, have grown enormous since the establishment of the Border Patrol in 1924 . In 2017, it consumed 21% of the total budget for the Department of Homeland Securi ty (U.S. Department of Homeland Security, 2017) .
18 However, as important border enforcement is, it does not fall within the scope of this paper, which will instead examine less visible but increasingly powerful Immigration and Customs Enforcement (ICE), which oversees all interior enforcement operation s, including the specific subject of this paper immigrant detention . encompasses the remaining two strategies for reducing the number of undocumented imm igrants present in the nation. that if the laws are enforced aggressively enough, life will become so difficult and unpleasant d eport or leave on their own 5 . F or those who still choose to live here, ICE actively finds, arrests and forcibly removes them. Interior enforcement began to develop as a focus after the establishment of the INS (Immigration and Naturalization Service) in 1933 and grew steadily as a priority through the decades until the creation of ICE (Im migration and Customs Enforcement) as its own agency within the Department of Homeland Security in 2003. Under the authority of ICE , the Office of Enforcement and Removal Operations (ERO) identifies, investigates, and arrests unauthorized residents already living and working within the nation, holds them in detention during immigration court proceedings, and carries out orders of deportation. ERO , in turn, subcontracts most of its detention responsibilities and functions to private, for profit companies tha t provide detention faci lities and services. This chapter will follow the development of immigration law and policy as it specifically relates to interior enforcement, and the corresponding rise in the population of immigrants who enter outside of the boun daries of the laws and attempt to live in the United 5 This strategy is also utilized on the state and l ocal levels, in addition the federal policy that is the focus of this paper.
19 States without authorization. Beginning in first attempt to control immigration on a global level, this chapter follows the regression in the status of immigrants from desired wor kers to their current statu It briefly looks at the theories and fears that influenced our young nation to create the laws and the historical events and societal pressures that influenced their change. It also traces the parallel rise of undocumented immigration that steadily increased as a result of the limitations on legal entry, or in spite of them. Fina lly, it specifically examines the increased focus on interior enforcement practices as a means of addressing the growing unauthorized population, and the role that detention has played in those enforcement practices. The 19 Worker to Unwanted Ali en pede stal in 1903, immigration was peaking at between 800,000 and 1.3 million arrivals each year, a rate that would not be seen again until the 21 st century (Kandel & Wasem, 2016) . d seemed, for awhile at least, to embody the vision America had for itself, that we were nation built by immigrants and for immigrants. However, b e predominant national orgin s of newer arrivals had changed from Northern and Western European s to Itali ans, Russian Jews, Slavs and other groups from Southern and Eastern Europe. They spoke a wide variety of languages , were Catholic instead of Protestant, still maintained the customs and relationships of the Old Country, and were generally despised by already established groups in American society. While they had been tolerated for decades because they provided the muc h needed cheap labor in the mines, mills, factories, railroads and fields of our rapidly indu strializing and growing country, 1920 marked a major period of
20 unemployment, and Americans challenged the need for (D epartment of Labor, 1930) . I n addition, i mmigrant numbers had increased enough , and they were differen t enough , that Americans feared that they would change the ethnic and cultural identity of the United States (Dinnerstein & Reimers, 2009) . This would be a recurring theme in later decades that also experienced large influxes of unfamiliar ethnic groups, and society would a gain call for immigration reform. In response to public pressure , the United States passed two Immigr ation Acts, in 1920 and in 1924, that were clear attempts to proactively shape the racial and cultural makeup of the Unit e d States. F or the first time , per country quotas were set that heavily favored those from Northern and Western Europe and severely r estricted those from less desir able countries . Potential immigrants were restricted to a limit of 2% of the 1890 census population for their ethnic group (Kandel & Wasem, 2016) , with the hope that new immigrants would at least roughly reflect the racial and cultural mixture that was already 6 . As a result, i n 1925, the year after the Acts were passed, the number accepted from Southern and Ea stern Europe was limited to 3% of what it had been in 1907 (Department of Labor, 1925). Pre viously enacted b ans on immigration from certain Asian countries were upheld and even expanded . Finally, a cap of 150,000 immigrants from the Eastern Hemisphere in general represented a drastic limitation on total immigration levels from t he non Western world (Office of the Historian, n.d.) . Immigration from the other nations of the Americas , however, was not yet limited by quotas , but that is not to say that it 6 The Irish were an interesting case within this generalized immigration control dynamic. and therefore despis ed and distrusted by many there was such a large population of Irish in the United States by 1924 that the Irish Free State (southern Ireland) was granted a quota almost equal to that of Great Britain and Northern Ireland (Department of Labor, 1925) .
21 was easy to enter legally. Prospective immigr ants from the Americas were still required to obtain a visa, pay various fees, demonstrate literacy, and which involved humiliating baths, haircuts, and bodily examinations . While the Acts did limit legal immigration, flows did not end once th e limits had been reached. B around the world strongly encouraged immigration, legal or not. Because potential immigrants from the Eastern Hemisphere had essentially only been able to enter through seaports, shipping companies were held liable to ensure that their passengers had the nece ss ary papers before embarkation. T he closing of access by sea to those who could not secure the proper paperwor k led to the formation of new routes and methods that utilized th e poorly patrolled land borders 7 . Because Canada and Mexico were heavily by rejected European immigrants to bypass them. At issue was a little known law that allo wed people from quota countries to officially immigrate from Canada or Mexico after a short stay there first (Department of Labor, 1930) . In addition, s muggling operations began to develop and thrive (Department of Labor, 1925 ; Ngai, 2004) , and continue to this day. As a result, it is estimated that unsanctioned border crossings at least equaled legal (HernÃ¡ndez K. L., 2010) . This situation created a new legal problem, which Mae Ngai brings attention to: numerical restriction created a new class of persons within the na tional body illegal aliens whose inclusion in the nation was at once a social rea lity and a legal impossibility (Ngai, 7 A s an interesting commentary regarding the major sources of undocumented immigration in 1925, the same report states that there were also 19,710 seamen who deserted into the United States in the same year. This large section of unsanctioned immigration woul d be an ongoing problem that rarely receives attention in academic literature.
22 2004, p. 57) . On one hand, h opeful immigrants without authorization continued to find entrance, work, and even settle p ermanently in the United States, very like other immigrants. On the other hand, because they had entered witho ut authorization, they were a separate and distinct class within society, and could not be allowed to stay. Their presence was seen as a threat to the sovereignty of the nation, as express ed in the ability to control its borders. The ongoing and growing pr esence of this new cla ty sudden ly became a topic of national debate and a problem of international relations . Who deserved to enter , whether those who entered without permission constituted a threat to society, and what shoul d be done with violators became pressing questions for a nation concerned about protecting its sovereignty (Ngai, 2004) . The same questions and arguments continue today, a l most verbatim, close to 100 years later. F or the first time, Congress seriously discussed how and to what extent existing deportation laws would be enforced. Previously, deportation under warrant was infrequently exercised usually only in cases of criminal activity , disease, or if the immigrant had become a public charge (HernÃ¡ndez K. L., 2010) . It was rarely exercised for mere entry without inspection or for living in the United States without a valid visa . However, j ust days after the implementation of the 1924 Act, a new law enforcement agency was created specifically to enforce the new immigration laws. T he Border Patrol was estab lished , funded , and authorized to find and deport anyone living in the United States without legal authorization (Ngai, 2004) . In an effort to use its resource s effectively, it focused its work primarily on transportation routes, rather than the actual border itself , fo rshadowing the development of another agency of immigration policy that would develop decades later ICE . In its first full year of operation, the new Border Patrol deported approximately 9,500
23 people after they had surreptitiously entered. Deportations to Mexico and Canada were roughly equal, but only approximately 1/3 of those deportations were the result of entry without inspection or a proper visa. The remainder continued to be for poverty, disease, or criminal activity (Department of Labor, 1925) 8 . U nauthorized immigrants from several ethnic backgrounds were using informal routes to cross both borders , but t he southern border also experienced a surge of Mexican workers through T he southern operation of t he newly formed Border Patrol operated under the theory that only Mexicans crossed illegally, and that traveling Mexicans were very possibly unsanctioned, and should be questioned. As a result , t he Mexicans themselves quickly became the symbol of the (HernÃ¡ndez K. L., 2010) , and the percentage of (Department of Labor, 1930) . With t he economic collapse of 1929 and the crippling unemployment that followed , the US began to heavily screen Mexican applications for admission, reducing the number of visas granted by 75% (Rosenblum, Kandel, Seelke, & Wasem, 2012) . As the Depression wore on, the scarcity of work influenced the turn of public opinion against Mexicans, particularly in California, but in other locales as well. Communities rounded up their Mexican American populati on, put them on trains, and sent them back to Mexico . Between the formal apprensions and removals and the informal expulsions, more than 1.6 million Mexicans were . Many were U.S. citizens (HernÃ¡ndez K. L., 2010) . 8 He rnÃ¡ndez argues that while these appear to be separate categories for targeting undesirable populations for removal, they could also be used just as easily to target and stig matize a particular ethnic group for removal (HernÃ¡ndez K. L., 2010) . While this is a reasonable argument, it is unclear from the data that this was actually the case, at least before 1930.
24 A 1929 amend ment to the Act further legislated that undocumented entry was not just illegal, but spec if ied that it was also criminal, marking a nother immigration policy. A first offense was considered a misdemeanor and subsequent violations were considered felonies, punishable by fines and imprisonment. In both cases, the criminal record that was generated by being caught prevented the possibilit y of ever immigrating legally. I n 1939, 58 % of the rising number of deportations were the result of entry or re entry without a visa or an o verstayed visa (Department of Labor, 1939) . Finally, clearly solidifying its change in mission and focus, the Immigration and Naturalization Service (INS) was moved from the Department of Labor to the Department of Justice in 1940 (USCIS History Office and Library, 2012) . With this reorganization, detention numbers and facilities begin to appear in the annual reports. World War II : The Formalization of Detention Before World War II , those who were detained by INS as a result of interior enforcement actions were usually h eld in asylums and (Department of Labor, 1925) 9 . But w ith the declaration of war, the INS was directed to cases by the Attorney General Within six months, INS detention facilities had bee n established for 11,000 people, primarily Germans, Italians, and Japanese who had been captu red in or near the boundaries of the United States 10 (Schofield, 1942) . At the end of the war in 1945, 1,590 people remained under immigration proceedings in these detention 9 Both Ellis Island and Angel Island functioned during this time a s detention centers, but for new arrivals only. I have not encountered reference to any other dedicated immigrant detention facilities in the interior of the U.S. 10 Th e vast majority of the Japanese Americans were held in internment camps operated by the W ar Relocation Authority, not the Immigration and Naturalization Service.
25 facilities. Many of them had been held for some time as their cases languished during the war . As these facilities were closed at the end of the war, two in McAllen, TX and El Centro, CA liens a pprehended by the Border Patrol , thus becoming the first two dedicated immigrant detention facilities in the interior of the United States for peacetime use (Department of Justice, 1945) . The Cold War Years: The Legal Cr eation of Criminal Aliens Immigra tion and Nationality Act of 1952 The Immigra tion and Nationality Act (INA) was codified in 1952, bringing together for the first time the entirety of previous immigration and naturalization law s into a single document . Policies concerned with s haping the racial and cultural heritage of the United States were re affirmed and continued. World War II and Cold War hostilities and fears further influenced the immigration policy discussion to begin to explore the relationship between immigrant origins and national securi ty, an idea that would be of much greater import in later decades. S election criteria under this Act were expanded to prefer those who were expected to assimilate best into the economic, social and political life of the United States (Office of the Historian, n.d.) , which was merely another way of protecting the ethnic and cultural identity of the nation. While the INA was still a bill, President Truman vetoed it as continuing the discriminatory practices of the past , severe in its pursuance of deportation cases , and antithetical to foreign policy priorities as the United States emerged as a new leader on the world stage (Truman, 1952) . His veto was overrriden . Of much more significance to the issue o f undocumented imm igration in the post World War II years was the bilaterally negotiated Bracero Program (1942 1964) . The United
26 States was heavily expanding in both th e agricultural and railroad indu stries and needed cheap labor. Mexico was economically and politically interested in continuing access for its workers to the U . S . labor market, but also in protecting them from the abuses of the . The Bracero Program was therefore an attempt to both meet the demand for labor but still manage and limit long term migration between Mexico and the United States (HernÃ¡ndez, 2010) . In reality, however , emplo yers became frustra ted with its bureaucratic limitations, and took advantage of the privately established migration networks that already existed to hire the necessary laborers outside of the est ablished legal system , sometimes in numbers greater than through legal means (De Genova, 2013) . The ongoing temporary migration for seasonal work continued to expand and became more permanent as the workers established durable ties with both their employers and the communities they worked in , and the id ea of migration to the United S t ates to work became normalized (Rosenblum, Kandel, Seelke, & Wasem, 2012) . The dependence on unsanctioned labor can be seen in the rapidly rising numbers of peaking at more than 1 million deportations in 1954 under the aggressive enforcement (HernÃ¡ndez K. L., 2010) . More ap prehensions and deportations re quired new facilities to manage those who were arrested and held w hile deportation proceedings progressed and their appeals for relief were addressed. In 1952, a 1,000 ( Immigration and Naturalization Service, 1952, pg. 48) was nearing completion in Hidalgo, TX. Construction began on a 400 bed facility at Chula Vista , CA , and the World War II era facility at El Centro , CA was renovated and expanded to 500 beds. In total, there were at least 10 facilities contracted or run by ICE in 1952 , with a capability of handling
27 5,000 people per day 11 . They were quickly filled, as 201,618 detainees served almost 1.2M man days in that year, requiring the use of non INS facilities also. Most were held 6 days or less, due to either came before the judge (Immigration and Naturalization Service, 1952) . Immigra tion and Nationality Act of 196 5 The INA was heavily am ended in 1965 under President Lyndon Johnson, and it is this version , with all its later amendments, today . Influenced by the Civil Rights Movement of the INA abolished the previously racially based quota system for immigrant visas , and replaced it with a new system that prioritized family reunification, job skills, and humanitarian relief. However, s ignificantly for future illegal immigation patt erns, visa limits were placed on the Western Hemisphere for the first time (89th Congress, 1965) , a policy change that had been promoted for decades, particularly during the Depression years (Department of Labor, 1930) . The new hemispher ic limit of 120,000 represented half or less of the number that was annually migrating from Mexico alone , and was clearly intended to restrict immigration from all of our southern neighbors . In addition, per country c aps of 20,000 were put into place for the Eastern Hemisphere, and later extended to include the Western Hemisphere, even further limiting legal migration in general, and Mexican legal migration in particular (De Genova, 2013) . 11 INS facilities listed in the Report included San Antonio, El Paso, Los Angeles, San Francisco, Chicago, New York, Buffalo, Miami, McAllen, and Chula Vista, but the existence of others are implied. It also states that tens of thousands of detainees were he ld in 300 state, county and city jails (Department of Justice, 1954) .
28 The INA also specifically limited the ability of migrant laborers to continue their e mployment legally by applying for low skilled worker visas . A shortage of labor had to be certified by the Department of Labor before these visas were authorized , and app licants from Mexico were generally rejected. Employers who were dependent on migrant labor were reluctant to use this unreliable system, and still preferring to utilize their old networks, encouraged their workers to work illegally. Since demand continued, migration to meet that demand also (Ngai, 2015, De Genova, 2013, Massey & Pren, 2012) . It is estimated that in the five years immediately following the passage of the INA, up to 80% of migration fr om Mexico was (Rosenblum, Kandel, Seelke, & Wasem, 2012) . Still, the focus of immigration policy remained directed at the borders and seaports rather than the interior. Of the 138, 520 deportations in 1966 , the first full year after the passage of the INA , only 19% were from outside the border areas and only 6% were the result of interior investigations into legal status . Detention use dropped significantly during the to the decade earlier, with just over 80,000 admitted into detention facilities (Department of Justice, 1966) . The reforms of the 1965 INA ostensibly promoted the ideals of equal access and individual merit, important progressi ve goals at the time. However, there is debate among scholars as to how progressive this Act actually was, once all its parts are considered (Tichenor, 2016) . Charles Keely argues that the stringent requ i rements still reflected a driving philosophy to preserve Amercian culture as it was without having overtly racist policies. Instead, the racism was more implicit, as he argues ,
29 Imposition of labor certification on the majority of Western Hemisphere immigrants could affect not on ly the labor characteristics of this group but also the number and national origin distribtuion of immigrants from this hemisphere (Keely, 1971) . In other words, poten tial immigrants from less desir able demographic groups could be rejected based not on race, but on labor requirements. Policy Refocuses from Legal to Illegal Immigration 1986 Immigration Reform and Control Act : Illegal to W ork In the years after the termination of the Bracero program and the implementation of the 1965 INA ceilings , unauthorized m m igration across our southwest ern border steadily long the Mexican border, by 1984 it was over a million (United States Border Patrol, 2016) 12 . T hat number frightened not only the general population , but stimulated much debate on the floor of Congress, where it was widely believed that there were 12 20 millio n undocumented immigrants in the United States (Lowell, Bean, & De La Garza, 1983) . While empirical studies and census data suggested a much more modest figure of approximately 2 4 million, the larger number remai ned in the pu blic consciousness. The general public felt that undocumented i The racial makeup of immigrants had also notably changed again , and minority populations in the United States were growing , making them mo re visible . The framers o f the 1965 INA had incorrectly assumed that by preferencing family relationships, the profile of new immigration would more or less match the then current ethnic and racial makeup of the 12 refers to unsuccessful attempts, and does not correspond to the number of people who successfully cross. This increase in apprehensions may have been (at least partially) due to an increase in border patrol agents and funding.
30 country , a pattern that they wished to continue, but without using the onerous quotas . As it turned out, African, Asian and Latino Americans took advantage of the unlimited family reunification visas to a much greater extent than did their European heritage fellow citizens , dra matically affecti (Tichenor, 2016) . In addition to legal and undocumented immigration, the United States had also accepted hundreds of t housands of Southeast Asian, Iranian, and Cuban refugees in the late s, several times the number that the 1965 INA had provided for . The se unanticipated numbers of refugees were taxing public services, and while the public was sympathetic to their plight , it also wanted a clear legal distinction made between refugees escaping political persecution and immigrants seeking economic opportunities in how their tax dollars were spent (Maddux, 2005) . However, as Sarah Mahler argues, economic migration and political migration are often so deeply intertwined that they cannot be easily d ifferentiated (Mahler, 1995) . War, civil unrest, persecution, foreign actions , displacement, fear and hunger all play into decisions to migrate, especially if that migrati on must, out of necessity, be unsanctioned. To illogical need to clearly distinguish between the two . Economically , s ociety was also experiencing a major recession, with high i nflation, high unemployment, and a stagnant economy . While little was actually known at that time about how immigrants impacted national , state and local economies, and experts embraced a wide range of opinions, the public was keenly aware of the cost of public services that immigrants might be cons uming and had little understanding or even awareness of the benefits received by their labor , consumption, and participation in society. In addition , the increasing expansion of out of agricultural sectors and into service, construction,
31 and m anufacturing jobs was seen as threatening to native born blue collar workers. I t was believed that undocumented immigration artificially depressed wages and negati vely affected worker s rights , although research, even at that time, failed to support those assumptions (White, Bean, & Espenshade, 1990) . Public c oncerns over the changing national character and economic security resulted in a political push to reform th e 1965 INA , and in particular, to protect American workers better (Maddux, 2005 ; Lowell, Bean, & De La Garza, 1983) . The same arguments are used today, as was most recently seen in (Trump D. J., 2017) . In powerful contrast to this outdated but still influential of labor unions in the United States, the AFL CIO, issued a resolution describing its position on immigrant labor (both legal a nd illegal) that advocates for, among other things , recognition of the effects of globalization and the need for fairer international trade agreements, and the extension of worker protections to all workers, regardless of status (Executive Council of the AFL CIO, 2009) . Responding to the recommendation s of the Select Commission on Immigr ation and Refugee Policy (SCRIP) established by President Carter and the Immigration Task Force appointed by President Re a gan, Congress began to debate various reform bills beginning in 1981, and finally passed the Immigration and Reform and Control Act (I RCA) in 1986. Briefly, the IRCA was a compromise between pro and anti immigration factions that attempted to quickly address the complications caused by the 1965 INA in order to allow the INS to focus its attention and resources on preventing future illegal immigration.
32 For the progressives and agri business , IRCA allowed for certain groups of people who had lived in the US for a longer period of time , or who worked regularly in agri culture, to apply to legalize their status without a penalty for previous unauthorized presence in the US . The p olicy that was suggested, and which was adopted into IRCA, is commonly referred . The Rev. Hesburgh of SCRIP argued successfully that at least some of the responsibility for the ongoing illegal immigration problems resulted directly from the conflict , and needed to be addressed with some leniency, commenting: Many undocumented migrants were induced to come to the United States by offers of work from US employers who recruited and hired them under the chain of family migrants to the United State s for at least two generations. Often entering for temporary work, these migrants began coming to the United States before this nation imposed a ceiling on legal immigration (Hesburgh, 1981, pp. 12 15) . In addition, w hen potential immigrants attempted to enter through legal mechanisms defined by the INA , they faced a years long wait as a result of the backlog of visa applications created by the ceilings . Rev. Hesburgh pointed out that a t the time of the report, there were more than 914,000 applications of qualified immigra nts waiting to be processed, and a lmost 275,000 of those were from Mexico alone. Even with a higher ceiling and the proposed reforms to the current law, the Commission recognized that it would take ye ars to clear the backlog. They concluded that t he dual factors of job opportunities and the desire to join family members already in the United States, combined with the near impossibility of legal entry, accounted for much of the illegal migration that wa s being experienced at the time (Hesburgh, 1981, p. 107) . Therefore, the Commission recommended a two pronged reform
33 that would both address current hindrances to legal immigration and dissuade future illegal immigration. Amnesty was intended in two ways. First, and obviously, it would clear the backlog of visa applications for qualified candidates , removing from the undocumented flow those with long established ties to the United States. It also recogniz ed the labor patterns that significantly benefi tted agri business , freeing up the workers it relied on to continue to harvest the fields . Approximately 3 million undocumented immigrants attained legal status through the two IRCA amnesty programs by the time they ended (White, Bean, & Espenshade, 1990) . With these two groups who regularly swelled the flow of undocumented immigration removed, the government hoped to focus its efforts on preventing future illegal immigration of thos e who were considered to be less beneficial to the United States (Hesburgh, 1981) . To that end, IRCA attempted to address illegal immigration on two fronts by making it more difficult to cross the border itself, and by taking away the ability to work without legal status , which was assumed to be the main undocumented immigrants in the first place. While the activities and increased funding of the Border Patrol are not a focus of this paper, the budget p rovisions of the IRCA must be mentioned because they laid the groundwork for increasing attention to technology and surveillance tools , now heavily used by both Border Patrol and ICE . In addition, the IRCA included a budget item for the identification and expansion of new detention capabilities for captured immigrants (Rosas, 2016) , indicating that the federal government was moving in a new direction with regard to undocumented immigration. INS enlisted Corrections Corporation of
34 America (now CoreCivic) and GEO Group to build the first subcontracted, pri vately run detention facilities. It was hoped that i mprisonment would be powerful tool to dissuade unaut horized immigrants from coming, and t he portrayal of deserving punishment was a theme that would d ominate succeeding legislation (Coleman, 2005) . Second, and equally important , the IRCA attempted to reduce the flow of future unauthorized immigration , as INS Assist a n t Director John Schroeder described it (Shroeder, 1987) . T o this end , the law declared it illegal for employers to hire anyone who could not prove that they were authorized to work in the United States . It was hoped that if those without visas crossing, and t hat unauthorized immigrants already here would become discouraged enough to return home. However, while the sanctions were levied on the employers, they merely needed to demonstrate that they tried to comply with the law in demanding proof of authorization to work, and easily avoid ed prosecution . Bacon and Hing argue that, punishing employers, or threatening to do so, was always simply a mechanism to criminalize work for the workers themselves, and thereby force them to leave the country, or no t to come in the first place (Bacon & Hing, 2013, p. 155) . This section of the IRCA marked a nother distinct shift in immigration policy, one that attached legal limitations and criminal consequences to a basic human right the right to work (United Nations, 1948) , continuing as criminal In the short term, IRCA appeared to have a depressive effect on un authorized border crossings, but only briefly, and apprehensions continued to rise after 1989 (United States
35 Border Patrol, 2016) . The long term evaluation of IRCA as a means of discouraging undocumented immigration was that its effectiv eness was limited at best . More far reaching studies in to Mexican sending communities found that the IRCA had not overcome either the economic incentive of potential workers who could not obtain proper authorization, n or the long established social network s that ma d e migration possible (Cornelius, 1989 ; Donato, Durand, & Massey, 1992) , particularly for Mexicans, who compromised 96% of the 1 million deportable aliens apprehended in 1990 (Immigration and Naturalization Service, 1991) . That fact that IRCA was ineffective in deterring unauthorized crossings did not influence policy makers to understand the drivers and mechanisms of undocumented immigration, but instead to pursue tougher, crueler measures to get rid of an unwanted pop ulation, whether by forcable removal through criminal charges (Kandel, 2016) or via deportation . 1996 Illegal Immigration Reform and Immigrant Responsibility Act: The Merging of Immigration Law and Criminal Law Enforcement The clear failure of the IRCA to limit undocumented immigration led to continued nat ional demand for immigration reform, and ten years later, President Clinton passed the 1996 Illegal Immigration Reform and Immigrant Respo nsibility Act (IIRIRA) , a watershed in how undocumented immigration was addressed in law . Unlike previous A cts which defined the terms under which prospective immigrants could apply for and receive visas, this extensive set of laws expanded the conditions under which people would be inadmissible , detained, or deported. The extensive use of the new and heavy focus on penalties, imprisonment, and removal of those without legal status reveals a massive shift in public opinion and resulting policy toward immigration and immigrants. In addition to
36 increasing penalties and enforcement for employment violations, ba rring access to public benefits like Social Security, and restricti ng all attrit ion based practices that made life for the undocumented difficult this Act also greatly expanded the framework necessary to develop a more potent interior enforcement program. Under IIRIRA, immigration law merged with criminal law, so much so that state and local law enforcement officers could be deputized to serve as proxy INS officers to identify immigration offenders, even if they had not committed a crime that would otherwise draw the attention of law enforcement . Jennifer ChacÃ³n describes the overlap and blurring of boundaries between the two this way: The two 1996 laws the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) resulted in a significant expansion of groun ds for removal under criminal law. These laws altered prior national policies by increasing penalties for violations of immigration laws, expanding the class of noncitizens subject to removal for the commission of crimes, and imposing a system of tough penalties that favor removal even in cases involv ing relatively minor infractions or very old crimes. (ChacÃ³n, 2013, p. 83) Therefore, forcible removal emerged from its previously minor role and joined attrition as a two pronged strategy for interior immigratio n control over the next decades, embracing t he belief that more robust interior enforcement would make conditions of living in the United States without legal status so intolerable that even those undocumented immigrants who were not arrested r leave voluntarily . d so extensively in the new Act , a comment on its meaning is in order, since it is not explicitly defined in IIRIRA or in any other law . The non citizen who has ever been convicted of a crime in the United (Kandel, 2016) . This definition creates a number of subcategories based on legal status, what type of crime has been committed, and the current position on
37 relief options . A non citizen may have legal permanent resident (LPR) status, some kind of tem porary protected status, or be undocumented. Presence in the United States without lawful status is not a crime, but other related charges are conside criminal immigration law , including entry without inspection, using false documents to live or work, etc. The severity of crimes and consequences varies dependin g on whether it falls under criminal law or immigration law, as well as whether incarceration was involved and for how long. Finally, the ability to gain relief from deportation for crimes committed depends on the priorities and discretion of the administr ation in power. It is a complicated term that fluctuates in actual meaning, but in general, it is important to note that deporta necessarily equivalent terms (Kandel, 2016) . The IIRIRA is quite large, with five sections defining the legal basis for most of the current policy practices as they per tain to undocumented immigrants . This paper will highlight some of the most important laws that significantly expanded and shaped our current i nterior enforcement practices increased funding for interior criminal investigations, the leveraging of local law enforcement resources to identify and arrest those without legal status, the significant expansion of the list of deportable crime s, the drastic increase in the use of mandatory detention, and the implementation of re entry bars that effectively prevented the undocumented already in the United States from legalizing their status. First, the IIRIRA allocated f unding for a massive increase for both border patrol and interior enforcement. Whereas pre IRCA peacetime responsibilities of the INS were primarily concentrated o n border inspections and record keeping, the new Act expanded INS responsibilities in interior enforcement, such a s investigating criminal activity committed by
38 non citizens , pursuing those who overstayed visas, addressing the problem of document fraud, developing a program to effectively monitor employment eligibility, target ing human smuggling , and more (Immigration and Naturalization Service, 1999) . In its first five years of implementation , interior investigations increased by 320% over pre IRCA levels, supported by detention and removal budgets that had been increased by 806% (Dixon & Gelatt, 2005) . The Act stipulated that the new funding should be used specifically to investigate the smuggling and employment of foreign workers and those who overstayed visas , a relic of IRCA concerns about protectin g the domestic labor force . H owever, the number of investigations into these particular violation s actually decreased in the five years immediately following the implementation of IIRIRA . Instead , criminal investigations doubled, making up 70% of the caseload of INS interior investigations by 2003 priorities (Dixon & Gelatt, 2005) . In order to more aggressively and efficiently pursue the n ewly , t he IIRIRA added Section 287 ( g ) to the INA . This allowed the Attorney General to enter into agreements with states and local authorities that would expand local law ns, specifically the investigation, arrest, detention, and transportation of detainees across state lines. This was a significant change to previous law, which limited authority for immigration enforcement to federal INS officers only . The intent of this f ederal and local partnership was to leverage local resources and personnel (U.S. Department of Homeland Security, 2010, p. 8) . T his section of immigration law was quite unpopul ar when it was first introduced because it was believed to undermine the trust
39 relationship s with their local law enforcement and willingness t o share information about actual criminal activity , both considered necessary to ensure safe communities . However , it became an important basis for new interior enforcement practices in the decade s following 9/11 , which will be discussed later. Third , the IIRIRA greatly increased the types and sever i ty of crimes for which non citizens could be deported, exposing al l non citizens including lawful permanent residents (LPRs) and asylees, as well as the undocumented to greater risks of deportation res ulting from even minor brushes wit h the criminal justice system. One of most misunderstood , which was significantly expanded under IIRIRA , and which is also distinct from the definition of the same term under criminal law . Prior to 1996, only murder, drug trafficking, and illegal firearms trafficking were aggravated felonies and therefore grounds for deport ation under immigration law. Even if one was convicted , the penalty of deportation could be waived by the judge, depending on the circumstances . However, u nder IIRIRA , the term was re defined to include any crime for which a sentence of one year or more could be imposed, whether or not it actually was. (The threshold for for citizens under criminal la w is five years.) In some locales , even misdemeanors and non aggravated felonies under criminal law are re characterized as aggravated felonies under immigration law because the one yea r possible sentence is a very low threshold to meet . In addition , IIRIRA drastically curtailed the ability of immigration judg es to use discretion in these cases , further increasing the number of non citizens vulnerable to deportation and without means of relief (Johnson D. M., 2001) .
40 the common understanding of the word also influences how the general public perceives bot h undocumented immigrants themselves and the appropriateness INS/ICE enforcement practices . Media announcements regarding the arrest and deportation of commonly use , suggesting the commission of a violent crime, and misle ading the public about the threat the undocumented population pose s to society. In actuality, the vast majority of charges levied in interior investigations and leading to deportation are actually immigration related only , which will be discussed in more d epth later. The use of this kind of terminology clearly has serious legal consequences for non citizens, but it also influences public perception and resulting support of immigra tion enforcement practices. Language is a very important means of understanding reality and then transfering that reality to society. Word choice matters, because through language, society builds its stock of knowledge and create s an understanding of the world. As Berger and Luckmann observe, the fundamental superimposition of logic on the objectivated social world. The edifice of legitimations is built upon language and uses language a s its principal instrumentality (Berger & Luckmann, 2011, p. 142) . The choice of words by ICE is very strategic and powerful, because it causes society to assign an entire group of people a subordinate place in society and justifies the institu tional means of (Berger & Luckmann, 2011) . A fourth practice established by the IIRIRA was the mandatory detention of certain non citizens for unspecified and sometimes lengthy periods of time while awaiting the removal case in Immigration Court (Langenfeld, 1999) . The actual practice of detention was authorized in the 1952 INA (although it had been used
41 , but as demonstrated earlier, it tended to be either as a short term hold while deportation p roceedings were completed, or if someone with a background considered dangerous had app ealed their deportation. Most immigrants in deportation proceedings who requested a hearing were bonded or paroled out until their hearings actually took place. Occasion ally detention was used in sporadic enforcement bursts , most notably in connection Central America (HernÃ¡ndez D. M., 2013) , both of which were heavily criticized . IIRIRA altered the INA to mandate detention for t hree groups of people. The first group of people are those who present themselves at the border without proper paperwork Asylum seekers are subject to mandated detention until an immigration judge makes a determination on their case , even if they pass their initial credible fear interview . At the time the law was written, the asylum seeker could expect to spend only a few days in d etention while awaiting their hearing . However, because of backlogs, it can now take years to complete the process, and bond hearings are, out of necessity, a possible form of relief (U.S. Citizenship and Immigration Services, 2016) . However, i f the asylum seeker fails the initial credible fear interview, he or she may still request a review before an immigration judge, and in this case, he or she is subject to mandatory detention until that time (Langenf eld, 1999) . The second group of people affected by IIRIRA are those who are arrested in an interior enforcement action. If the person has been convicted of an aggravated felony, they are mandatorily detained , because they are subject to removal and c annot appeal for relief. For all others without documentation who have committed any type of crime, including
42 violations of immigration law, they may be detained until a decision is made on their case, depending on current policy. A third group affected by mandatory detention are those under an order of removal by an immigration judge . IIRIRA requires that the removal be completed within 90 or 180 days, depending on the circumstances. If the removal has not or cannot be completed within that tim e, the detainee may receive a hearing in which the judge decides if they may be eligible for release on bond (American Bar Association, 2017) . If the judge decides they are not, they may be held in mandatory detention indefini tely . T he number of people held in detention had actually been decreasing and in 1994, before the implementation of IIRIRA, the detention population was 25,675 (Office of the Federal Detention Trustee, 2001) . H owever, in anticipation of greater demand as a result of IIRIRA, s ection 386 appropriated $15M to identify available facilities and formalize detention capabilities and staffing to handle 9,000 beds immediat ely, with a request to estimate future needs. I dockets swelled, available bed space was almost immediately exhausted, and the detained immigrant population quickly surpassed the sentenced prison population (Office of the Federal Detention Trustee, 2001) . M andatory detention pursuant to deportation proceedings (HernÃ¡ndez D. M., 2013) and peaked in 2012 when 477,523 people were booked into detention in t hat single year (Office of Immigration Statistics, 2014) . Because detention is a primary focus of this paper, the massive growth in detained population, the development of facilities and systems to manage it, and the issues sur rounding its use will be further explored in Chapter 3.
43 Finally, a particularly onerous feature of the IIRIRA was the re entry bars described in Section 301, which limit the ability of undocumented immigrants to legalize their status. Bars to reentry for periods of 3 20 years are imposed for various offences , including orders of removal, failure to attend removal proceedings, or simple unlawful presence either currently or in the past. While the bars are ostensibly intended to be a deterrent to overstaying visas , the fact that they are triggered only upon departure actually results in them becoming an incentive for undocumented immigrants to stay as long as possible 13 . In 2018, most undocumented immigrants have been in the United States more than ten years, and the average length of residence continues to rise (Krogstad, Passel, & Cohn, 2017) . This level of stability brings with it the implication that they are likely members of established households and families, whic h may include U.S. citizen parents, spouses and children. Based on these types of family relationships, many could apply for Lawful Permanent Resident (LPR) status. However, as the research of Ruth Gomberg MuÃ±oz reveals, because they are required to complete the application in consular process ing in their home countries , they would trigger the bars when they left , and therefore not be allowed to reenter, even if their applications for legal status are granted 14 . The risk of separation from their fa milies for such long periods of time is therefore a harsh deterrent to legalizing their status. Not only would the family be torn apart by the banishment of their parent, spouse or child, but the loss of an adult income provider is devastating economically to their loved ones 13 Pew Research findings show that the average number of years undocumented immigrants had stayed in the United States in 1995 w as 7 years. In 2014, the median had risen to 13.6 years (Passel & Cohn, 2016) . 14 Some people caught in this dilemma may apply for an I 601 Waiver of Grounds of Inadmissibility, but qualification standards are stringent and d ifficult to meet (American Immigration Council, 2016) .
44 (Gomberg MuÃ±oz, 2017) . The legal trap created by the IIRIRA bars perpetuates a cycle of societal frustration as those without authorization remain in the United States without attempting to legalize their status and the public calls for harsher laws and stricter enforcement. T hese, in turn, force undocumented immi gra nts to remain in the shadows, isolated from soc iety , which creates consequences that are unhealthy for both them and for society at large (Lundstrom, 2013) . Post 9/11: From Criminal Aliens to National Security Threat Establishment of the Department of Homeland Security As a direct result of the terrorist attacks of 9/11, President Bush created the Department of Homeland Security (DHS), combining the functions of all or part of 22 and (U.S. Immigration and Customs Enforcement, 2017) . As part of the reorganization, three new agencies were formed within DHS to manage the duties of the former INS the Bureau of Customs and Border Protection (CBP), the Bureau of Citizenship and Immigration Services (CIS) and the Bureau of Immigration and Customs Enforcement (ICE). As this paper progresses, it will continue to focus on the interio r enforcement of immigration law, which is primarily the responsibility of ICE. Over the next 6 years, ICE reorganized its responsibilities, centralized control, and technologically developed its approach to interior enforcement (U. S. Immigration and Customs Enforcement, 2017) . Between 2004 and 20 1 7 , funding for identification and removal of criminal aliens increased from $23.5M to $6 .23B , with a heavy emphasis on developing efficiency, coordination, and information technology (Office of the Inspector
45 General, 2012 ; U.S. Department of Homeland Security, 2017) . The stated purpose of the sentenced to imprisonment, and who may be deportable, and remove them from the United States once they are judged deportable (U.S. Immigration and Customs Enforcement, 2009) . The folding of INS duties and responsibilities into the Department of Homeland Security marks yet another sig nificant change to the priorities and direction of immigration policy. As Jennifer ChacÃ³n aptly describes it, Prior to 2001, most lawmakers and their constituents viewed the expansion of immigration restrictions and immigration law enforcement primarily a s a matter of crime control. While some U.S. lawmakers began to view immigration laws as an rationale for immigration reform did not dominate legislative or national discu ssions in the pre us immigra tion law enforcement (ChacÃ³n, 2013) . CIS also confirms her a ssessment of the shift with their statement that, of American immigration law enforcement became border security and removing criminal aliens to protect th e nation from terrorist attacks (USCIS History Office and Libr ary, 2012) . However, it has been widely pointed out that there has not been a terrorist attack perpetrated by someone who would qualify as a criminal alien on American soil since 1975, including the perpetrators of 9/11. Further, t he investigation and deportation of hundreds of thousands of people in the years since has netted fewer than 20 people who were planning such an attack (Nowrasteh, 2017) . Unfortunately, in spite of the disconnect between goals and evidence , undocumented immigrants were both officially viewed as national security threats and subject to enforcement actions that addressed them as such. Of the several pilot programs and operations that were developed during this period, four have ascended to prominence. Each have their roots in IIRIRA and have become
46 important tools for ICE to identify and appreh end criminal aliens, and their areas of responsibility overlap quite a bit. First, t he Criminal Alien Program (CAP) primarily monitors loc al jail and state prison populations. Its purpose is to identify and track the undocumented while they are still incarcerated and to procure final orders for removal before they finish their sentences. Currently, non citizens comprise just over 6% of the i ncarcerated population and are potentially subject to deportation upon release . Second, v arious so called enforcement agencies in which local officers are delegated the authority to enforce federal immigration law within their jurisdictions , both in jails and in their local communities . This program has been pared back since 2013 in response to complaints of abuses, as will be discussed below . T hird, t he National Fugitive Operations Program focuses on identifying, locating and arresting specific fugitive aliens those with removal orders, and particularly those who have been previously removed from the United States. Finally, the largest of these programs, Secure Communities, received targeted Congressional funding in 2008 to coordinate the efforts of local law enforcement, the FBI, and DHS nat ionally in pursuit of deportable aliens (Office of the Inspector General, 2012 ; Kandel, 2016) . Secure Communities : 2008 2014, renewed in 2017 Secure Communities (SCOMM) began as a pilot program under President George W. Bush and was significantly expand ed under Presid ent Obama. At its core, SCOMM was a federal information sharing partnership between the FBI and the Department of Homeland Security (DHS). Local law enforcement agencies enter ed the fingerprints of those arrested into FBI data bases to check for a criminal record or outstanding warrants. T he FBI then forwarded that information to the DHS to check imm igration status, which alerted ICE of the
47 location of an undocumented individual and allowed them take custody if they ch ose to do so. If the pers on in ques tion met a detainer was issued , requesting that the individual be held until ICE could take custody. Under the earlier CAP and 287(g) programs (before the development of the interconnected ICE/FBI databa se) , ICE could not identify those in custody who were undocumented if their current char ges were minor or if there had been no sentence imposed , unless they were specifically reported by local law enforcement . With SCOMM , booking alone would result an automatic search for immigration status. Once FBI and ICE databases were fully integrated , the program was piloted in 2008 in several counties along the southern border, then expanded until it was fully implemented throughou t the United States in January of 2013. In conjunction with the development and implementation of the SCOMM database, adopted in a growing number of state and local jurisd ictions. The coordination between the two programs was so extensive that they often considered to function as a single program (Homeland Security Advisory Council, 2011) . question peo ple about their immigration status, serve warrants, arrest those who were unlawfully present, prepare charging documents, and enter data into the shared database 15 . Actual supervision of the local officers, however, was poor, and resulted in a variety of un intended activities, particularly in terms of community enforcement practices (U.S. Department of Homeland Security, 2010) . Within a few years after the implementation of 15 llowed officers to investigate the immigration status of members of the community in the course of their duties.
48 SCOMM and the corresponding expansion of related 287(g) programs, allegations emerged that they were being used for racial profiling in Latino communities, with local officers making frivolous arrests intended to ferret out those without legal status (U.S. Department of Homeland S ecurity, 2010) . Since the immigration status of all arrestees w ould be checked at local jails whether or not the individual was actually charged or convicted of a crime, officers knew that even minor infractions could potentially begin the process of deportation of unw anted residents. Even in Congress it was recognized that , intentions, state and local law enforcement agency involvement with immigration law enforcement would increase the likelihood that biased officers will engage in racial profiling (Kandel, 2016) . Rates of arrest for minor traffic infractions and other misdemeanors showed a marked spike in some counties after implementing the programs, and checkpoints to inspect icenses appeared in Hispanic neighborhoods and near popular places of business, worship, and recreation (Nguyen & Gill, 2016 , Coleman & Kocher, 2011) . Such actions not only fueled charges of racial profiling, but also of violations of the 14 th Amendment, which including non citizens. Unfortunately, in spite of several lawsuits pursuing this legal avenue, it has been some time since the Supreme Court has decided in favor of non citizens in partic ular case s (Heeren, 2013) . Participation in the program was originally presented to law enforcement as voluntary, but by the time it was fully implemented, it was clearly mandatory. Any time officers checked the FBI database for a criminal record, information on the detainee was automatic ally, by law, shared with ICE. was to not enter information to check the criminal background of those they arrested, which was clearly detrim ental to law enforcement needs. For this reason, within ethnic
49 communities, local law enforcement officers came to be seen as agents of ICE, and distrust grew between the communities and their local officers. Members of ethnic communities were hesitant to report crimes, act as witnesses, or assist with investigations in any way, severely hindering the ability of law enforcement to protect their communities (Nguyen & Gill, 2016) . The program had also been presented to the public as a means of finding and However, a key criticism levied against SCOMM (and verified by the Office of the Inspector General) was that a large percentage of those ensnared in the program and deported were minor offenders, or even non offenders (U.S. Department of Homeland Security, 2010) stated priorities for enforcement were (under SCOMM) : 1) Aliens who pose a danger to national security or a risk to public safety, which is defined as those with convictions, including misdemeanors ; 2) Recent illegal entrants, in order to maintain control of the border; and 3) Aliens who are fugitives, meaning t hey have a final order of removal. The disconnect between the objectives as stated (dangerous violent offenders) and the priorities was obvious to local law enforce ment as well as the communities they served. The collected data regarding the actual criminal status of those ensnared and deported raised serious concerns among the law enforcement community about the objectives of the program . For example, the 2011 ICE y ear end report of removal numbers shows that only 55% of those removed had a criminal conviction of any kind, including misdemeanors (U.S. Immigration and Customs Enforcement, 2011) . The emergence of supporting data led to wide spread criticism and even opposition to participation (Homeland Security Advisory Council, 2011) .
50 The combined accusations of racial profiling and general resistance of local law enforcement agencies to participation made SCOM M increasingly controversial. By 2011, these complaints and others were deemed to have sufficient merit and importance that DHS Secretary Janet Napolitano appointed a Task Force to investigate the SCOMM Program. The complaints registered were found to be j ustified, recommendations were issued, but adequate solutions to the numerous complaints were unable to be implemented. In 2013, all community based interviewing practices and information sharing in place. SCOMM was suspended in November 2014 in order to review its policies for clarity and legality as well as to prepare a fresh program to present to the public (Johnson J. C., 2014) . Priority Enforcem ent Program: 2015 2017 I n response to the criticisms of the SCOMM program and repeated failed attempts to modify it , President Obama issued new directives that promised to better focus enforcement efforts on those who had actually been sentenced for crimes . T he Priority Enforcement Program (PEP) was introduced in July of 2015. The new enforcement directive kept the FBI/ICE data sharing program, but focused on the activities of the CAP pro gram, monitoring those non citizens who were incarcerated, processing their orders for removal before they were released, and taking custody of them for removal upon the completion of their sentences . Therefore, detainers were issued only for those who had already been convicted of a crime, rather t han simply having been arrested for one . In addition, the new system only required notifying ICE of impending release of someone without legal papers, not detaining them longer than their sentence required, unless ICE already had final orders of removal.
51 I n 2016, the only full year of PEP, ICE apprehended 114,434 people, 92% of whom met enforcement priorities security, pub l data reveals that of Priority 1 information about the nature of their crimes , 11% lacked papers at an airport or other port of entry, 23% had misdemeanor conviction s , 7% were unable to prove that they had been in the United States continuously for the last three years, an That leaves approximately 18% that could actually be identified as (U.S. Department of Homeland Security, 2016) . 16 . PEP was short lived, however. When President Trump took office in January 2017, one of his fi rst Executive Orders ended PEP and re instated SCOMM, effectively re making all those who are deportable targets for action, rather than just those with criminal convictions. The 2018 Status of Undocumented Immigrants There were an estimated 11 million undocumented immigrants in the United States in 2015 , the most recent year for which statistics are available, representing just over 3% of the total population (Passel & Cohn, 2016) . The number has been declining steadily since 2007. At least 66% have been living in the United States for at least 10 years, which is an important consideration in discussions regarding relief possibilities (Krogstad, Passel, & Coh n, 2017) , as well as the societal cost of deportation . Seventy eight percent of undocumented 16 The definitions of the Priorities can be found in the Johnson Memorandum (Johnson J. C., 2014)
52 immigrants are from North America , less than half are from Mexico . Roughly 10 million are adults and 1 million are children, and close to half are members of households that include US citizens, often (Bruno, 2014) . In spite of laws prohibiting the hiring of undocumented workers, it is estimated that 8 million are actually working, mostly in co nstruction, service industries, and support services (DeSilver, 2017) . When ICE published its Strategic Plan in 2016 (for use th rough 2020), it was clear that t he association of interior enforcement with the prevention of terr orism remained strong . For example, Goal 1, Objective B: Counter Terrorist Entry into the United States and Support overstay their period of lawful admission or ot herwise violate the terms or conditions of their admission to the United States or abuse the Student Exchange Visitor Program and who pose a national s ecurity or public safety threat (U.S. Immigration and Customs Enforcement, 2016, p. 15) . stayers should be shocking to society, but for many, it has become an inexplicable norm. It is within this context of national security that must be understo od. It is the justification for the expansive direction to deport all those subject to the IIRIRA laws, as well as removable aliens who have been convicted of any criminal offense, and even those who have only been charged or might be charged with a crimin any government agency, received public benefits to which they wer judg lic safety or national se curity (Trump D. J., Executive Order: Enhancing Public Safety in the Interior of the United States, 2017) . In line with this mandate, as of the writing of this paper, the President has ended temporary
53 relief programs, including Deferred Action for Childhood Arrivals (affecting about 8 00,000 ) and three Temporary Protected Status program s for Nic araguans (affecting 2,500 ), Haiti ans (affecting 46,000), and Salvadorans (affecting 200,000) together exposing over 1 million people to removal . The Order called for significantl y more aggressive enforcement in the interior by ICE in 2017 , which resulted in a 5 0% inc rease in administrative arrests, an 80 % increase in the number of detainers issued, 42% more people booked into detention as a result of ICE actions, and a 37% increase in removals over 2016 . (U.S. Immigration and Customs Enforcement, 2017, p. 135) Conclusi on Almost 100 years have passed since the United States created its first comprehensive racial and cultural identity of the nation, the need for cheap labor to suppor t growing industries undermined those goals. Through the next several decades, immigration policy struggled to keep control of the movement of migratory workers and tried to ensure that they racism of the old laws was replaced by more subtle measures, preferring those who already had family here or who had the skills deemed necessary by the Department of Labor. Still, undocumented immigrants continued to enter, and to fin d employment. of only focusing on who could enter, increasingly punitive laws were enacted intended to make life so difficult for those without authorization that they wo uld deport themselves, and future migrants would reconsider coming in the first place. The criminalization of work without papers was the first of these laws, but within ten years, IIRIRA had successfully re -
54 ens The lengthy list of immigration the way society understood those among them without papers. The fear of foreigners that escalated after the terrorist attacks of 9/11 also provided the political approval and funding to making all undocumented gave roo millions of people in our communities to be stripped of the few rights they have and be made subject to expulsion.
55 CHAPTER III THE CURRENT SITUATIO N OF IMMIGRANT DETENTION Introduction: The Recent Demand to Increase Bed Capacity On the same day that Executive Order 17368 was issued , a companion order was also issued , entitled Border Security and Immigration Enfor cement Improvements (EO 17367) . Among its several mandates, i t to allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or n ea r the land border with Mexico (Trump D. J., 2017) . Enforcement and Removal Operations (ERO) , in response, requested a $1.736B budget increase for 2018 in order to further boost staff and expand facility capacity to meet the d e (U.S. Immigration and Customs Enforcement, 2017) . T he majority of the funding was earmarked for 51,379 contracted beds , a 25% increase over the average daily population (ADP) in the Fall of 2017 (U.S. Immigration and Customs Enforcement, 2017, p. 133) . The request was modified by Congress , and t he Senate advised that the budget reflect the maintenance of the 2017 ADP only , which was just over 38,000. The Senate a lso directed that ERO transfer more detainees and operations to less expensive subcontracted facilities and to make better use of the Alternatives to Detention Program (United States Senate Committee on Appropriations, 2018, p. 45) . T he 2019 Budget Request again submits a funding request for 52,000 beds , as well as for funding to increase the use of ATD (U.S. Department of Homeland Security, 2018) . In anticipation of receiving the funding necessary to meet the Following der in January, GEO Group was awarded the contract for a new 1,000 -
56 bed facility in Co nroe, TX in April (GEO Group, LLC, 2017) . A contract for a second 1 , 000 bed site to be located in south central Texas was solicited in September of 2017 (U.S. Immigration and Customs Enforcement, 2017) . In October of 2017, ICE again solicited a formal r equest to identify additional sites in Chicago, St. Paul, Detroit and Salt Lake City for new detention facilities (U.S. immigration and Customs Enforcement, 2017) . The m a ndated use of detention for both asylum seek ers and the pursuit of cases by those who believe they have a legitimate case for relief from deportation , combined with a severely backlogged court system , are the primary drivers for this rapidly expanding need for long term bed space. The policy of mandated detention itself has drawn criticism both domestically and internationally because this punitive approach has been used as the primary tool for managing irregular immigration, rather t han less expensive and more humane alternatives . In order to meet the current demand, ERO increasingly depends on subcontractors for staffing, everyday management, necessary services, transportation and the physical detention facilities, which is another focus of criticism. W hile subcontractors are subject to oversight by ICE, there are no systems in place to ensure compliance or penalize non compliance 17 , resulting in allegations of abu se, denial of rights, and neglect. T he conditions of detention make it very difficult for detainees to effectively pursue their appeals for relief, which raises q uestions of justice, fairness , and equal application of the law . This chapter will explore the se issues and others as 17 All ICE owned and subcontracted facilities are governed by PBNDS and inspected regularly by the Office of Detention Oversight and the American Correctional Association. When there are complaints, the Office of the Inspector General can conduct an investig ation. However, I cannot find any evidence of consequences imposed for failure to meet standards other than a directive to change a practice.
57 some of the most pressing of the myriad of legal and e thical problems created by the o rder of mandated detention. Theoretical and Actual Basis for Mandated Detention The right to detain immigrants in removal proceedings belongs to the Attorney General, which is specified in several places, including Act 241 of the INA . The more severe mandate to detain those who are pleading asylum, are inadmissible , are deportable, or are unde r removal orders appears in Section 303 of the IIRIRA. That the Attorney General may charge the Department of Homeland Security with the administration and enforcement of immigration law, including detention, is granted by the U.S. Code, Title 8, Subchapter 12, 1103 . As for the usefulness and purpose of detention , Stephen Legomsky, former Chief Counsel of the U.S. Citizenship and Immigration Services , offers three theories, all of which are reflected in current policy a and reports (U.S. Immigration and Customs Enforcement, 2017) . First, detention prevents people from absconding before they can be removed. Peter Schuck and John Williams argued effectively in 1999 that this was the primary reason for the inclusion of mandated detention in the 1996 IIRIRA law (Schuck & Williams, 1999) . While some studies have been done on the likelihood that criminal defendants will ab scond based on a variety of factors, Legomsky points out that it is unclear whether those results apply similarly to immigrant removal proceedings. The newly arrived, those who have lived here a long time and have extensive community ties, and asylum seeke rs, for instance , would each have very different motivations for appearing in court or for absconding . He argues that mandatory detention may be necessary and prudent for some of those in proceedings, but
58 questions that it is appropriate for all who are in cluded in the mandate, advocating instead for a return to case by case consideration (Legomsky, 1999) . The Alternatives to Detention program, discussed later, was created with these very considerations in mind, and it has had very positive results , according to ICE (Office of the Inspector General, 2015) , but for unclear reasons, it is severely underutilized. Second, detention is considered nec essary to protect the safety of the general public. Thi s particular concern is echoed in the identifies, arrests, and removes aliens who present a danger to national security or a threat to (U.S. Immigration and Customs Enforce ment, 2017) . However, a s Legoms ky points out, there is no demonstrated connection between having immigrated even illegally and posing a criminal or security threat to society. FBI statistics agree with Legomsky, showing that non citizens commit crimes at roughly half the rate that citizens do (Rizzo, 2018) 18 . Nor is there any evidence that non citizens with criminal convictions who have served their sentences pose any greater danger to the communit y than citizens in the same position. He argues that althought t his opinion is widespread and oft repeated, it is completely without merit (Legomsky, 1999) . Third, there exists a rationale that the threat of detention discourages attempts to immigrate illegally. This belief that detention acts as a deterrent of the Year Report for 2017, when, after it summarized the value to the natio n of its increase 18 This article quotes statistics from the Department of Justice, the Cato Institute, American Immigration Council , the National Academy of Sciences , and the FBI to defend this argument. The FBI statistic cited says that 6% of non citizens are incarcerated, which is half of their general population percentage of 13.5% . The assumption is that the incarceration rate sho uld roughly equal the percentage of that group as a part of the whole population. The
59 in interior arrests, convictions (implying that detention had been utilized) , and removals, it stated, These results clearly demonstrate profound, positive impact of the EO (Executive Order). The decrease in border removals shows the dete rrent effect of strong interior (U.S. Immigration and Customs Enforcement, 2017, p. 13) Again , there is no evidence that t his is actually the case (United Nations High Commission for Human Rights, 2012 ; Schriro, 2017) . Between 20 08 and 2016 , the average daily detention population remained fairly steady between 31,000 and 34,000 (Office of Enforcement and Removal Operations, 2016) . Border Patrol apprehenions, however, fluctuate d wildly between 327,000 and 705,000 (United States Border Patrol, 2016) with no clear correlation between the two. However, it should be considered that detention does in fact act as a deterrent, but not necessarily to future illegal immigration. As this chapter lays out the environmen t, systems, and practices of detention , the argument can be made that detention is a deterrent . It literally deters those who believe that they have the legal r ight to relief from removal from effectively presenting their case. A century ago, immigration law was viewed as an extension of foreign policy, and made at the border only, entry without inspection was not punished, and the commissio n of a crime was not necessarily grounds for deporation. However, as immigration law developed particularly after IIRIRA formerly civil violations were re defined as criminal violations with serious consequences, including deporation (Stumpf, 2013) . It has been repeatedly stated by ICE and the DHS that immigrant detention is not , pending a hearing of
60 final removal orders in immigration court (Schriro, 2009) . The close res emblance of detention to prison both of which include removal of physical and social liberties has contributed to the question of whether there remains a valid distincti detention a The language used to decribe activities is remarkably similar. ERO describes its enforcement actions in much the same way as law enforcement ins to ICE detention facilitie t he targets (U.S. Immigration and Customs Enforcement, 2017) . The Department of Homeland Security itself recognizes that the distinction is a matter of law only, and not a physical reality on the ground. Their commentary on the subject provides a compelling critique of their own methods : As a matter of law, Immigration Detention is u nlike Criminal Incarceration. Yet Immigration Detention and Criminal Incarceration detainees tend to be seen by the public as comparable, and both confined populations are typically managed in similar ways. Each group is ordinarily detained in secure faci lities with hardened perimeters in remote locations at considerable distances from counsel and/or their communities. With few exceptions, the facilities that ICE uses to detain aliens were originally built, and currently operate, as jails and prisons to co nfine pre trial and sentenced felons. Their design, construction, staffing plans, and population management strategies are based largely upon the principles of command and control. Likewise, ICE adopted standards that are based upon corrections law and pro mulgated by correctional (Schriro, 2009, p. 4) ICE claims to have used a civil detention model since 2009, rather than a crimin al justice model. I have been unable to find a clear definition regarding . Some very basic guidelines are suggested by the UNHCR, but ICE facilities do not meet all of these (United Nations High Commission for Human Rights, 2012) . In 2012, by re purposing an older facility
61 in Karnes County, Texas (Schriro, 2017) . The following provides the best available description of the envision ed model: [ICE] o pened the Karnes County Civil Detention Center in Karnes City, Texas, which is the first facility designed and built from the ground up with ICE's civil detention reform standards in mind. The facility offers free movement throughout the d ay and early evening hours; eight person dorms, each with a television, a private bathroom with a shower, seating, tables and a phone; a spacious outdoor recreation area with basketball and handball courts, a turf soccer field, sand volleyball court and se veral covered pavilions with seating; multiple dayrooms with televisions, furniture, and microwave ovens; and a medical clinic, cafeteria with extended hours, library, chapel, educational space, indoor gymnasium, and computer lab with access to email servi ces. (U.S. Immigration and Customs Enforcement, 2018) In 2014 , the facility was converted in to one of three available family residential units to house women and children. However, within one year, it came under fire in District Court for failing to comply with minimum requirements for detaining young children, as well as for the fact that women and children most of whom qualified for asylum status and many of whom were severely traumatized by their journeys we re e ven being held in detention (Sakuma, 2015) . The facility is still in use but remained unlicensed as of 2017. As of the end of the have centered around fami ly detention only, but with limited success in actually creating it on the ground (Schriro, 2017) . The Office of Detention Policy and Planning continues to promise that it will (Office of Detention Policy and Planning, 2018) , but there is no stated vision for what will re place them. Immigrant detention is imposed pre hearing, and therefore, most of those held in detention have not yet been convicted definitively of any immigration related crime, and cannot be considered to be serving a sentence. It has been been pointed ou t that if immigrant detention were a punishment, procedural safeguards would be triggered, including several under the Constitution (Legomsky, 1999) . The fact that it is mostly imposed pre hearing also
62 demonstrates the biggest difference between the two. Incarcerated criminals must serve out their imposed sentence. Detained immigrants may choose at any time to withdraw their case and allow themselves to be removed 19 . The always incentive t o abandon their cases rather than pursuing relief. Criticisms of Extensive Detention U se The extensive use of detention has been challenged on an international level by the United Nations High Commissioner for Refugees, particularly in the case of asylum seekers , who are subject to mandatory detention under IIRIRA 20 . T he United States is party to the 1967 Protocol Relating to the Status of Refugees , and therefore legally obligated to refrain from penalizing or limiting the freedom of movement of asylum seek ers beyond what is necessary. The United States also ratified the International Covenant on Civil and P olitical Rights that persons awaiting trial shall be detained in cu stody, but release may be subject to g At the core of these and other international agreements is the right to human liberty, a freedom theoretically cherished by the United States. While the UNHCR recognizes the right of nat ions to decide who will be admitted and how, it does insist that the right to liberty be upheld as much as possible while that decision is being made (Gilman, 2013) . The UNHCR recognizes that the commitments made under these two treaties align with domest ic law in the United States in general , as well as with a number of precedent s etting Supreme Court decisions. But i t also point s out that the actual application of these 19 Unless they have lost their case and are detained awaiting removal. 20 At thi s time, they can request a bond proceeding at a later date for possible release until their asylum hearing.
63 laws falls short of both international and domestic sta ndards in the realm of immigrant detention (United Nations High Commissioner for Refugees, 2016) . In order to assist governments in reviewing their detention policies and practices and consider modern alternative s to detention , in 2012 the UNHCR updated its guidelines outlining current international norms regarding the use of detention . They include, among other things, that detention cases should be considered on an individual basis, that irregular en try itself should not be p enalized, that liberty should be the default position , and that the conditions of dete (United Nations High Commission for Human Rights, 2012) . Pointing out that U.S. policy is in direct contradiction to these international norms, Clinical Law Professor Denise Gilman states, The United States has instead become reliant on detention as its principal means of immigration enforcement and the conflation of detention and immigration con trol has led to the current presumption of detention that violates interna tional human rights standards. United States immigration law and practice must disentangle detention and enforcement and restore the use of detent ion to its proper limited role (Gilman, 2013, p. 298) . In her argument, she presents a number of ways that our system might be modified that would scale back our extensive use of detention and still control the immigration process , including release on bon d or community supervision . While a number of detention reforms were implemented after 2009 (U.S. Immigration and Customs Enforcement, 2018) 21 , neither the systems for the impos ition of detention nor the scale of detention were included in those. 21 Most of these reforms were incorporated into the 2011 version of the Performance Based National Detention Standards (PBNDS). They primarily included directives to improve medical services, access to legal services, religious opportunities, reporting complaints, and visitation policies. (U.S. Department of Homeland Security Press Office, 2012)
64 In light of the Order and the recent rapid expansion of the immigration detention system , 2013 argument becomes even more compelling . Organization of the Detention System The systems and operation of detention primarily fall under the authority of Enforcment and Removal Operations (ERO), one of several divisions of ICE. ERO identifies and apprehends removable aliens, manages their detention (or supervision if they are not d etained) until their case is decided, and actually performs the removal operation. The Office ICE regularly uses at least 200 detention facilities, not all of which are dedicated to ICE detainees (U.S. Immigration and Customs Enforcement, 2017, p. 146) . Holding facilities are generally the first to receive detainees; they hold them for less than 24 hours for processing. While there, information is collected, records checks performed, and personal belongings are taken for storage. These facilities have only very sparse amenities. Short term (less than 72 hours) detention facilities 22 are for those in the pro cess of removal or transfer to a longer term facility. These ar e usually state or local jails and are not required to meet PBNDS requirements. Finally, there are at least 165 long term facilities ( for detentions longer than 72 hours) across the United Stat es that house detainees while they wait for their cases to proceed through immigration court or they are removed (U.S. Immigration and Customs Enforcement, 2017) . The facilities themselves are owned and managed in a variety of w ays. Service Processing Centers (SPCs) are owned by ICE, but usually operated by private companies. 22 The time frame for short term detention will chan ge to (U.S. Immigration and Customs Enforcment, 2017 , pg. 139 )
65 GEO Group, CoreCivic , and Ahtna Corporation. State and local jails as well as prisons run by the Federal Bureau of Prisons or the Marshals are also sometimes contracted to house detainees, even if they have not been convicted of a crime. Juveniles are ofte n held in juvenile facilities operated by the Office of Refugee Resettlement or by charitable organizations until they are transferred in to the custody of the Department of Health and Human Services (TRAC Immigration, 2016; Homeland Security Advisory Counc il, 2016) . If they are with family members, they may be for family units (U.S. Immigration and Customs Enforcement, 2017) . Processes The processes and focus of i mmigrant detention are quite different from criminal incarceration. First of all, the population is very unstable and unpredictable in terms of numbers. Many more detainees are booked into the immigration system than into the penal system, and th e stays are usually shorter (Office of the Federal Detention Trustee, 2002) . It is difficult to plan for future needs because it is unknown how long immigrant detainees will be held while their cases are being settled. Stays ca n range from a few days to months and even years, depending on the type of case and court backlogs, and can end without notice. In addition, unexpected surges at the border, suddenly changed removal operations, or national policy changes can significantly affect population numbers at any one location with little notice. For example, a sudden , unanticipated surge of migrants at our southern border in the Fall of 2016 increased the need for bed space from 31,000 to 41,000 more than were immediately availabl e in the space of only a few weeks. In order to balance populations
66 within individual facilities, produce detainees for cour t dates or at removal sites, de fuse problems, or even to save money (different facilities have widely differing per bed costs), de tainees are often transferred among facilities. Detainees are processed every time they enter a new facility, which is both costly and time intensive. Therefore, the focus of the detention system is necessarily on detainee processing, movement, and short t erm management (Office of the Federal Detention Trustee, 2002, p. 4) , rather than including any kind of rehabilitation or long term planning . It is for these reasons, as well as the fact that privately contracted detention facilities can provide their services at a lower per day cost, that ICE has used and continues to use private, for profit contractors to manage more than 65% of their detained population (Homeland Security Advisory Council, 2016) . Performance Based Standards Detention standards, procedures, and expected outcomes, whether in ICE managed or privately run facilities, are defined by the Performance Based National Detention Standards (PBNDS), compiled in 2011 and most recently updat ed in 2016. They apply to ICE and contracted facilities, but not necessarily to state and local jails. In 2009, ICE created the Office of Detention Oversight to regularly inspect detention facilities for compliance with the lenges persist in assuring that actual on the ground practice lives up to the full requirements In 2016, the Homeland Security Advisory Council (HSAC) made a number of recommendations to expand oversight, reduce reliance on county jails, and improve heal th services to all their facilities (Homeland Security Advisory Council, 2016, p. 13) oversight in order to increase the options availabl e for temporary detention space,
67 compliance inspections (U.S. Immigration and Customs Enforcement, 2017) . Significantly, the HSAC Task For ce was formed to decide whether ICE would continue their contracts with privately run detention facilities after the 2016 decision by the Department of Justice to phase out their contracts with the same facilities and rem ove prisoners from their care. The el of priorities ( In defense of the lack of services provided by GEO , one supervisory staff member at the GEO run DCDF pointed out that type and quality of most services provided in the facility are individually contracted by ICE 23 , and not granted or withheld by GEO themselves . ) the continued use of private, for profit detention, with increased oversight. The decision was condemned by the ACLU (which named the Denver Facility specifically) as well as many other human rights organizations (Homeland Security Advisory Council, 2016) . Denver Contract Detention Facility The Aurora INS Processing Center opened in 1987, and it was the first facility built by GEO for the INS. It wa residential (non penal) environment for non (The GEO Group, Inc., 2017) , although there is no further information or description as to what that statement meant . It was originally built to handle 150 detainees, and later expanded to house up to 400. That building is no longer used for detention purposes, although it is currently being renovated, possibly to expand bed capacity for future contracts . 23 This information was from a conversation within the context of volunteer staff training.
68 The newer Denver Contract Detention Facility (DCDF) 24 opened in 2010 . It has beds for 1,532, of which between 700 and 900 are contracted to ERO at any one time, and the remaining number to the U.S. Marshals. It has a lower per day bed rate $94.54 than the 2018 national average of $149.58 per day, which means it regularly receives long term detainees from other facilities. It averaged 90% capacity throughout 2017, which is considered ideal, because it allows for detainees to be housed with others accord ing to security classification regulations (U.S. Immigration and Customs Enforcement, 2017) . The Facility houses adult men and women only, not families or children. Because the Denver Facility is in the interior of the country and far from the border, it is used in a different way than those facilities in the border areas. Inda and Dowling make the persuasive argument that the detention facilities are intended to be a deterrent use d to punish those who cross clandestinely and deter future illegal immigration attempts (Dowling & Inda, 2013) . However, their comments refer specifically to border area detention facilities, and it must be note d that t he focus of those facilities is the generation of a criminal record and the expedited removal of those caught recently. On the other hand , those held in the Denver Facility have primarily been arrested as the result of interior actions or been tran sferred based on successful asylum claims. In other words, they have successfully crossed and potentially have legitimate claims to stay. This is not a group that would be easily deterred by detention, for it means they have won the right to be heard. I ar gue that deterrence presented by this facility and other large facilities in the interior of the country 24 This is the most common name for this facility on the internet, in reports , a nd in other Aurora ICE Processing Center, and on another that it is GEO Aurora ICE.
69 is instead about deterring detainees from following through with their cases, as will be presented. Based on my own observations made inside as an English teacher in the wards, it looks and functions very much like a prison. Most detainees are housed 4 or 8 to a cell with lockable doors, in wards that hold up to 80 people 25 . Cells are arranged in two stories surrounding a common area, with tables and seating for 76. Detainees wear color coded type uniforms issued by the Facility, depending on their security classification 26 . Religious garb, such as Sikh turbans, are not provided, but detainees are allowed to improvise them using uniform t shir ts. Count is conducted four times a day, and lockdowns for failed counts, disturbances, or medical emergencies are common. Interaction with guards varies considerably from respectful and professional to contemptuous and demeaning. The detainees are o ften referred to by administrators, supervisors and staff by the dehumanizing and without a known, personal identity. It is a term that is very offensive and entir ely appropriate in any environment except a morgue. Three hot meals per day are served a t 4:30am, 10:30am, and 4:30pm. They are to be prepared in accordance with defined nutritional and caloric requirements, but they are often described as unappetizing, an d several ethnic groups consider the choices to be so unfamiliar 25 There are some older wards used for overflow that are one room, with bunks for 40 and more limited restroom facilities. A facility tour guide recently referred to this arrangement as 26 Blue uniforms indicate that there is either no crimina l record or one that contains only minor, non violent incidents. Orange uniforms are for those with a criminal record, but only non violent offenses. Red is reserved for those with a history of violence, whether or not they were convicted. A classification (U.S. Immigration and Customs Enforcement, 2002) .
70 as to be inedible. Kosher, vegetarian, religious, and medical diets are available subject to approval, but can take days or even weeks to be arranged. Detainees have commented to me on severa l occasions that they have lost a great deal of weight while being held because of the quality and amount of food available . Six detainees a day are chosen to clean each ward without pay, and detainees are offered the opportunity to work in t he kitchen, janitorial services, laundry, or maintenance for $1 per day, enough to buy a single package of dry ramen noodles in the commissary. All detainees are required to take turns cleaning housing areas under threat of a variety of punishments, includ ing solitary confinement and the opening of criminal proceedings against them. In 2015, several detainees from DCDF filed a class action lawsuit The case Menocal, et al v GEO Group , representing a potential class of more than 60,000, remains before the court as of this writing. Activity and movement are strictly limited. Detainees can only leave the ward for medical visits, legal visits, library access, visitation, o r work. Each ward has a bank of telephones which detainees can use if they can pay for it. Most calls are subject to monitoring , although it is not always clearly posted . Calls to consulates and to the list of pro bono attorneys are free and not monitored. Visitation is limited to one 50 minute visit three days per week. It is non contact only and takes place through a plexi glass window via a handset. Legal visits are in person using private consultation rooms. solitary confinement, is us ed as punishment for a variety of offenses, but is also sometimes requested by detainees to escape crowded and noisy conditions.
71 27 , television (listened to on headsets for which the batt eries must be earned through good behavior), board games, crocheting or crafts using snack wrappers, and ping pong. Recently, a short emotional management class was added, taught in one ward at a time. Other rehabilitative or educational programs such as G ED, substance abuse programs, job skills training, etc. that are normally provided in regular jails and prisons are not offered at this writing (Colorado Department of Corrections, 2015) . For good behavior and passing cleanliness inspection, the ward may also get the use of an Xbox and receive snacks. Detainees are allowed access to a , minus time for count and meals . In the yard is a single g ym apparatus and a basketball hoop, and sports balls can be checked out. Approximately the size of half of a basketball court, it has a cement floor, very high cinderblock walls, and is at least partially covered on top, with a small space at the top allow ing fresh air to enter. When the immigration judge orders a detainee to be removed, or if the detainee himself signs self deportation orders, he or she is scheduled for removal. Those scheduled for deportation are removed from the wards in the middle of the night and transported in shackles. Phone banks are sometimes shut down the next day if there have been many removals. Preparation for Immigration Court Most of those held in detention are pursuing a case for relief from removal in immigration court. Au rora Immigration Court is housed in the same building as DCDF and 27 I am the English teacher. I teach a 2 hour class, twice a week, for ten weeks in one ward at a time.
72 primarily hears the cases of those who remain in detention, a different demographic from courts who hear non detained cases. These cases tend not to be represented by counsel and are more li kely to consist of those who, because of criminal convictions, do not qualify for bond or parole. Immigration Court and the Board of Immigration Appeals (BIA) are both overseen by the Executive Office for Immigration Review (EOIR), which is under the autho rity of the Department of Justice. EOIR has no authority over the location or conditions of detention, but only hears cases and grants a decision (U.S. Department of Justice, 2016) . It is ICE that issues the initial Notice to Appear ( or similar) that begins the court case , then holds the res pondent until he or she can appear before the judge. The case itself is prosecuted in Immigration Court by the Office of the Principal Legal Advisor (OPLA), an office within ICE. Stays in d etention during the course of proceedings can vary from just a few days 28 to months or even years. The average length of stay in long term detention is 52 days as of the end of 2017 , but the actual stay for any one individual varies widely (U.S. Immigration and Customs Enforcement, 2017, p. 136) . Factors that influence how long people remain detained include the type of case being pursued, whether the individual is represented by counsel , the backlogs in immigration court, the number of appeals, and the If the respondent is granted relief, he or she is released within hours or a few days at the detainee is shown to the front door of the facility, often at night, regardless o f the weather, in a city they may not know, with only the belongings they had when they were arrested and the 28 few days, so they will not be discussed here.
73 money left in their detainee accounts . They may or may not be released with a form of identification that is acc eptable for domestic air travel, which can hamper their ability to return home 29 . The Legal R ights of Detainees Detainees have very few rights under either the Constitution or Statutory Law. The Homeland Security Council names but four: physical abuse, attention to medical needs , access to courts, and the right to prepare fo r and (Homeland Security Advisory Council, 2016) . The first two of these relate to the living conditions inside detention centers and are addressed in other litera ture (United States Commission on Civil Rights, 2015) . The final two, however, directly relate to a major objective of this paper, that is, to examine the process of applying for relief fro m removal from inside detention and w ill be addressed here in more detail. T he Right to Counsel Both the Fifth and the Fourteenth Amendments guarantee that no person shall be law, with being the crucial term that includes non citizens , regardless of their legal status. This right was extended formally in 2009 to include the right of non citizens to obtain counsel in removal proceedings, but Section 292 of the INA specifies that it must be at their own expense. In order to satisfy that 29 Casa de Paz, the secondary site of the research project, is a non profit organization that picks up released detainee s daily from the detention center, houses them for up to three days, and assists them in cont acting their family or sponsor to make travel arrangements to get home. Representatives from Casa de Paz have requested that the detainees be released with their detention badges, a form of federal ID, that would facilitate their travel, but that request has been denied. They are considered the property of ICE and shredded in stead.
74 this right has been upheld, the immigration judge must ask the individual before him i f he or she wants counsel, offer time to obtain it 30 , and confirm that a waiver of that right is informed and voluntary , even if actually securing counsel was impossible . It was my observation in the Aurora Immigration Court that those who represented themselves in court were carefully advised by the judge in more detail about their proceedings and options and the advantages and consequences of each decision they were asked to make 31 , but it is unknown whether that is standard practice in all courts . The judge sometimes advised the respondent that he or she may qualify for a certain type of relief and requested the bailiff to provide the paperwork to apply. As a matter of national practice , the right to due process is alleged to be often violated in several ways, including when the detainees are not advised of their rights in a language they can understand, when they are transferred to a remote facil ity without notice to their attorney s or without the reasonable opportunity to obtain an attorney, when proceedings are rushed and the detainee s do not have time to seek counsel, when detainees are pressured into signing voluntary deportation forms that th ey cannot read before they have the opportunity to seek counsel, when they cannot access legal materials (either physically or because of low literacy or lack of English language skills), or when they are not provided a list of pro bono attorneys. M ost of these violations have been reported by those held in detention 32 , and in my own experience , some have been alleged by those held at the Denver Facility. These 30 During my observation of the Aurora court, t hat period was 1 week after their initial appearance, with a 1 week possible extension. The judge always confirmed that the respondent was in possession of a list of pro bono attorneys. 31 I observed ap proximately 80 proceedings in the Aurora Immigration Court between February 20 March 1 , 2018. 32 U.S. v Reyes Bonilla, Orantes Hernandez v Thomburgh, Rios Berrios v INS (Manuel, 2016)
75 violations, however, are not currently considered grounds for revis i ting a case (Manuel, 2016) , although the consequences are substantial. For many of the reasons listed, representation is very difficult to obtain from inside detention, particularly if the detainee has no family or is far removed from his community, as is often the case. Detainees themselves generally have very little access to money, and often st ate that they attempted to cont act lawyers on the pro bono list, but they never received a response . I n some cases, community groups, ethnic organizations and even individuals contribute to provide a lawyer to specific individuals held in detention. Nationally, in 2017, just over 30% of detainees had secur ed a lawyer to represent them. In Colo rado, that number is only 1 0%. Corresponding to such a low rate of representation, 76 % of deportation hearings in the Aurora Immigration Court ended in removal , compared to the national average of 69% (TRAC Immigration, 2017) 33 . It has been ar gued on at least two occasions 34 before the Supreme Court that the right to a court appointed attorney should be afforded to those in removal proceedings based on the serious consequence of banishment, the increasing intertwining of criminal law and immigration law, a nd the close resemblance between immigrant detention and criminal incarceratio n. These cases and others have been denied based on the distinction that (Manuel, 2016 ; Harvard Law Review, 2015) . In order to assist unrepresented detainees to understand the legal processes they are a part of, make informed decisions about their options, and mount a more effective defense, the Vera Institute of Justice administers Legal Orientation Programs in 38 of 33 It must be again noted that because this court hears the cases of tho se who could not bond or parole out, the removal rate is likely to be higher . 34 Argersinger v. Hamlin and Scott v. Illinois
76 detention centers, including the Denver Facility (Vera Institute of Justice, 2018) . The program has been funded by EOIR, who sees the program as a means of improving court efficiency, resulting in fewer court hear ings and less time spent in detention (Executive Office for Immigration Review, 2016) . In the Denver Facility, the Legal Orientation Program is managed by the Rocky Mountain Immigrant Advocacy Network ( (Rocky Mountain Immigrant Advocacy Network, 2018) ). The program offers several forms of assistance. A list of local pro bono lawyers is A group o rientation is offered at least two times per week and provides an overview of the court processes and options for relief. The presentation is in English and Spanish, with written packets available in at least 21 other languages , and with the support of telephone inte rpretation. At the group p resentation, detainees are allowed to ask more detailed questions one on one , including about the specifics of their own cases. These detainees are encouraged to enroll in small group self help workshops for assistance in preparin g and practicing for their court appearances. Finally, pro bono referrals are provided to a few , as identified in the individual consultations . RMAIN coordinates with several Denver area immigration law offices who accept pro bono cases. In 2017, RMIAN conducted more than 200 Legal Orientations, facilitated 35 pro se workshops, assisted close to 450 detainees individually , and provided referrals for 128 meritorious cases (Rocky Mountain Immigrant Advocacy Network, 2018) . Under the Trump Administration, the Department of Justice is scheduled to suspend funding of the Legal Orientati on Program as of April 30, 2018, while the program is reviewed.
77 Fully Equippe d Law Library For those who are unable to h ire a lawyer, or who have interest in understanding their case s , access to legal information is crucial. Under f ederal law, prisons are required to provide an up to date law l ibrary for use by the inmates. The same is not federally re quired for immigrant detention, but the Performance Based National Detention Standards (PBNDS) states equipment (including photocopying re at least 5 hours per week, with the abil ity to request longer periods. They should be oriented as to what resources are available, and receive special assistance if they are illiterate, disabled, or have low English proficiency. PBNDS provides a list of required texts that are to be available to the detainees for reference, in cluding bilingual dictionaries (U.S. Immigration and Customs Enforcement, 2011) . However, Sarah Dun way notes that because the PBNDS is not binding, many facilities do not carry even the minimally required materials . In addition, the texts that some carry are out of date or access by detainees is limited. She argues for a statutory right mandating that immigrant detention centers to a law library that is actually up to date, relevant, and properly equipped , including a person who is trained to assist in its use. She also argues t hat these terms be clearly defined and enforced in each and every facility, enabling those facing deportation without legal counsel to at least attempt to defend themselves effectively. It is currently unknown how many detention facilities have even a mini mal law library (Dunway, 2017 ; United States Commission on Civil Rights, 2015) , but the Denver Facility does, although whether the library also provides assistance to those who need it is not clear. Its computerized law library is available in a physical r oom, with photo copying abilities and dictionaries , which can be
78 accessed at least 10 hours a week by detainees. It also has the library loaded onto tablets , which are located in every ward for the use of the detainees at any time 35 . Types of Cases T hat Can be Pre sented by Detainees Removal proceedings are by far the most common type s of case s that come before immigration court . Ninety four percent of cases heard in immigration court begin as a removal order, but d uring proceedings, the respondent may file papers to request other types of relief, including defensive asylum, withholding of removal, or cancellation of removal (Office of Planning, Analysis, & Statistics, 2017) . A detainee is legally allowed to apply for any and all types of relief for which they believe they may qualify t hey are not required to choose only one. The following are the most common types of relief available to someone already detained. The first is cancellation of removal, which, if granted, would res ult in the conversion of undocumented status to L awful P ermanent R esident (LPR) . In order to be eligible for this must have been continuously physically present in the United States for the prior 10 years and must establish that removal would result in exceptional and or LPR spouse, parent or child (Bruno, 2014) . The hardship must be unusual in the sense that it is beyond the expected hardship involved in losing a parent, spouse or breadwinner that would be the normal result of deportation t he dismemberment of a family is not consid 35 I was told by the detainees that at least some of the information on the tablets was available in Spanish and in Creole. The tablets also had Skype capability and video games, both of which could be used at a cost, which makes them high in demand within t he wards. However, with approximately 8 tablets available in each ward of 70+ people, they often had
79 That the undocumented immigrant is the primary caregiver of an ill or disabled c itizen family member is frequently considered to be an exceptional case 36 . This is a difficult defense to prove, and c ancellations of removal for unauthorized immigrants are limited to 4,000 per year (Siskin, 2015) 37 . Second, if the detainee can prove that he or she is the beneficiary of a family or employment based visa petition filed before April 30, 2001, he or she may petition for Adjustmen t of S tatus to LPR (Bruno, 2014) . However, t her e must also be a visa available to grant to the applicant (Siskin, 2015) . If the applicant is the spouse or minor child of a citizen, visas are available. Also, f or some countries without large numbers of people trying to immigrate, v isas are available. However, if the applicant is the spouse or child of an LPR, he or she must wait for a visa . T here are currently almost 4.4 million approved applications waiting for visas to become available, and 1.4 million of these are from Mexico alo ne. (Bureau of Consular Affairs, 2017) . A sylum requests are common and can take one of two forms. requests are made either at the border itself or within one year of arrival in the United States. Under IIRIRA, Section 302, if a potenti al asylee whose status is otherwise inadmissible (no papers), ases. In order to successfully plead an asylum case, they must describe themselves as persecuted because of their race, religion, nationality, membership in 36 For more on the leg Newspaper (Elliot & Hendricks, 2010) 37 Under IIRIRA, and per 8 CRF 1240.20, there was a cap of 4,000 people who were eligible to receive this form of relie f per year. Once the cap was reached, decisions were delayed until the next year. As of January 4, 2018, the law has been changed so that once the cap has been reached, all further cases are denied. The stated reason is to prevent backlog. (American Immigr at ion Lawyers Association, 2017; Executive Office for Immigration Review, 2017)
80 a particular social group, or political opinion. Poverty, lack of economic opportunity, high crime rates, natural disaster, or civil unrest are not considered for this type of relief 38 . Once their possible eligibility is established, they can apply to be paroled or bonded out of detention until their hearing by US Citizenship and Immigration Services (US CIS) , currently occurring up to four years later (U.S. Citizenship and Immigration Services, 2018) 39 . If they are not paroled or bonded, or if they fail the initial interview and request a review, they will be detained until a f inal decision is made by an immigration judge in immigration court . Those in detention do receive priority in scheduling but wait time s can still be months or years. Very few of the survive the interview process, approximately 8 3% of were successful in 2016 (Office of Planning, Analysis, & Statistics, 2017) . similar to affi rmative asylum in that the same credibl e fear standards must be met. However, in addition, defensive asylum seekers must defend why they did not apply with in the first year that they entered the United States, and why they waited until they were in removal proceedings b efore seeking relief. In 2016, EOIR received almost 64,000 defensive asylum cases (Office of Planning, Analysis, & Statistics, 2017) 40 . If pursued from detention, these 38 Some argue that the distinction between emigration for political reasons as opposed to economic reasons is not as straightforward as the law suggests. Economic failure can be an important factor in political persecution, and political unrest often results in displacement, lack of opportunity, and severe economic decline. How the asylum seeker describes their situation is crucial in the credible fear interview (Mahler, 1995) . 39 Affirmative asylum backlogs are attributed to the pulling of asylum officers from USCIS and transferring them to the border areas to handle an ever increasing number of asylum requests , which doubled between 2015 and 2016 (U.S. Cit izenship and Immigration Services, 2016) . 40 Affirmative asylum cases are more often handled by USCIS.
81 types of cases take approximately 3 5 years to complete (American Immigration Council, 2016) 41 . They are diffic ult to defend without a lawyer, at least partially because USCIS believes that those applying are abusing the system in order to get work authorization or to seek Cancellation of Removal (U.S. Citizenship and Immigration Services, 2 016) . Overall, defensive asylum cases are granted at a rate of 41 % (Office of Planning, Analysis, & Statistics, 2017) , but at only 20 % in the Aurora court (TRAC Immigration, 2017) . T here are also several types of temporary relief for which a person may apply. None of them are permanent, none allow the person to apply for permanent status, some may Withholding of Removal may be granted if the applicant does not qualify for an asylum case, but still faces the likelihood of persecution. These types of cases were granted relief 7% of the time in 2016 (Office of Planning, Analysis, & Statistics, 2017) . The Conve ntion Against Torture (CAT) prevents the removal of even criminals to a country in which punishment would likely include torture. In 2016, CAT relief was granted in 1.6% of the cases (Office of Planning, Analysis, & Statistics, 201 7) . Temporary Protected Status (TPS) may be granted country. Usually this is granted to a category of individuals as a result of a diplomatic action, and the recipients must register with USCIS within the established time period, but those in deportation proceedings may also apply. As of November 2017, citizens of 9 countries were eligible for TPS. Deferred Enforced Departure (DED) is dependent on Executive mem orandum and can be extended to the citizens of a specific country on a temporary basis 41 In 2015, Garcia v Johnson required a reasonable fear interview held and determination to be made within 10 days of the request, thus shortening the time spent in detention by some months.
82 while they are in de tention. Only Liberians a re currently eligible for DED. Finally, Deferred Action is an administrative decision not to pursue remo val proceedings but does not grant any kind of legal status. Application for this does not usually occ ur from detention, but it can . Deferred Action for Childhood Arrivals (DACA) is the most well known of this type of relief, but it was cancelled in September of 2017, and r ec was scheduled to expire on March 5, 2018 (Siskin, 2015) . However, as of this writing, the Supreme Court has instead referred it down to the Ninth Circuit Court of Appe als , and so the future of DACA recipients remains unknown. When a person no longer qualifies for a temporary relief program or when that program is suspended, their In 2017, 30,179 asylum cases (both affirmative and defensive) were heard nationally , with an overall average of 38% of those resulting in relief. Hidden within this general statistic exists a controversial allegation that a favorable outcome is based more heavily on luck than on actual merit. T he odd s of being granted relief vary widely from judge to judge from 3% to 9 1% producing allegations of unequal application of the law (TRAC Immigration, 2016) . Within the context of this discussion , t he Aurora C ourt , which hears primarily cases from detention 42 , relief rates were consistent among the three judges , averaging 20% (TRAC Immigration, 2017) . TRAC opines that such disparity is (at least varying responses to the challenges presented by the crippling backlog of cases and the focus of the administration shifting to expe diting proceedings 43 to reduce that ba cklog (TRAC Immigration, 2017) . Others have suggested that 42 43 (Trump D. J.)
83 the variation may also depend on the differences of application of law in different circuits, or the leanings of local courts in terms of judicial discretion. 44 Whateve r the reason, it is unclear at this point whether this problem is being addressed, either legally or academically, but it deserves further inquiry. Immigration court backlogs significantly affect the time spent in detention for all types of cases . At the time of this writing , over 667 ,00 0 cases were pending nationally, with 11,483 of those in Colorado (TRAC Immigration, 2017) . T he average processing time for completion of an immigration case is now 958 days (TRAC Immigration, 2017) , but those held in detention do receive priority and their times tend to be shorter . The problem of backlog was indirectly , ive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens (Trump D. J., 2017) While the White House has not been specific as to what those abuses consisted of, the USCIS echoed and expanded on that statement through the filing of non meritorious asylum claims in order to extend sta ys in the United States. In response , a new priority system has been implemented within USCIS for scheduling hearings that is intended to ferret out those claims quickly and place those individuals into removal proceedings rather than keeping them in deten tion or releasing them on bond until thei r hearing. First priority is rescheduled interviews; s econd is applic ations pending 21 days or less; and f inally, those cases that have been pending for more than 21 days will be scheduled , beginning with the new est cases and working backwards (U.S. Citizenship and Immigration Services, 2018) . The Attorney General has been reviewing 44 T his opinion was offered by an immigration lawyer who wished to remain unidentified.
84 EOIR as well and identified the same problems as did USCIS (Sessions, 2017) . The following statement by OPLA suggests that similar changes have been made: OPLA increased the number of priority cases handled in immigration court by improving docket scheduling and recognizing efficiencies through continued coordination with EOIR and U.S. Citizenship and Immigration Services (USCIS). In FY 2017, OPLA handled 875,633 cases, which is an increase of 44 percent over the FY 2016 caseload. OPLA obtained 107,333 orders of removal, a 25 percent increase over the FY 2016 orders of removal, of w hich 38,157 were criminal aliens (U.S. Department of Homeland Security, 2018, p. 35) . The above statement is informative in that it identifies the new priorities in hearing immigration cases increa sing the number of ca ses heard and increasing the percentage of removal orders obtained from those hearings . The low number of removal cases that included criminal charges 35% also brings into question the p urpose of the Executive Order important to the national security and public safety of the United States (Trump D. J., 2017) In 201 6, 26% of the cases heard in immigration court (including those not detained) resulted in some form of relief, or the case was closed for lack of evidence, called (Office of Planning, Analysis, & Statistics, 2017) . It is disheartening to reflect that in spite of such low odds of success, so many people risk so much to seek sanctuary in the United States, or to keep the homes and lives they have built. Bond and Parole The ACLU filed a class action lawsuit in 2013 challenging the excessive length of detention while backed up courts processed immigration cases. They demanded and won the right for a bond hearing for any case in which detention requirements exceed six months (American Civil Lib erties Union , 2017) . Detainees who meet certain requirements can therefore request release from detention on either bond or parole until their court date. To be
85 eligible, t he detainee must prove that h e or she is not a flight risk, a danger to the community , a national security risk , or among those that the IIRIRA identifies for mandatory detention . Bond proceeding s come before the immigration judge, who considers the probability that the detainee will appear in court when required. Important factors that are considered are ties to the United St ates, criminal history, and an identified 45 who will take responsibility for the detainee until his case is decided. If granted, the bond amount is decided by the judge, beginning at a minimum of $1,500. Parole is generally granted by ICE rather than EOIR . However, President Trump has recently directed ICE to take a more aggressive posture against granting parole. Secretary shall take appropriate action to ensure that parole case by humanitarian reasons or a significant public bene fit is derived from such parole (Trump D. J., 2017 ; U.S. Immigration and Customs Enforcment, 2017, p. 135) . IIRIRA suggests that bond only be granted in response to severe medical needs that cannot be met in detention. As (American Immigration Council, 2018) . Alternatives to Detention (ATD) In some cases, detainees qual ify for an Alternative to Detention p rogram. Intensive Supervision Ap pearance Program (ISAP) is the most used, and consists primarily of a combination of check ins, home visits, and ankle bracelet s , all managed by GEO Group 45 A sponsor is normally a family member or someone with a close personal relationship to the respondent. He or she must be willing to house the respondent, provide for all of their material needs for the duration of the case, and is responsible to see that the respondent appears at all court hearings when requested.
86 (Office of the Inspector General, 2015) . Two other programs were mentioned in earlier literature (Schriro, 2009) , but it is unclear if they are still be ing used. ISAP is considered necessary with the significant rise in the number of detainees due to the Order an d lack of available bed space. It costs only $4 per day, and ICE has seen it as a highly successful alternative, particularly for those detainees who are responsible for the care of small chi ldren. In 2017, almost 70,000 people were enrolled in ATD programs , but there were no plans to increase participation in 2018 (U.S. Department of Homeland Security, 2018) . When the 2018 Budget Appropriations were released, ERO was advised to increase the use of ATD instead of bed space, and so a budget request was submitted for 2019 that anticipated an increase in the number of people enrolled in the program to 82,000 (U.S. Department of Homeland Security, 2018) . Detention Due to Final Orders Those who have received their final orders of deportation and are waiting for paperwork to be processed and travel arrangements to be made remain in detention until their removal is carried out. The law states that ERO has 90 days either remove or release a detainee after their final orders are given (U.S. Department of Justice, 2016) . Sometimes removal is not possible within this period of time because the receiving country does not exist anymore, or will not accept the repatr iation of its citizens, or is slow in producing the necessary paperwork to effect their removal. There are currently 12 countries in this category, as well as another 47 who are at risk for non compliance (U.S. Department of Homelan d Security, 2018) . The Supreme Court ruled in 2001 46 that if ICE cannot secure the deportation of a person within six months, and cannot state definitively when that will be, the 46 8 CFR 241.14
87 detainee must be released unless sufficient reason can be presented to ke ep them detained (American Bar Association, 2017) . If sufficient reason can be presented, they can be held indefinitely. I know of at least one man being held in the Denver Facility indefinitely because he is stateless and has a terrorism conviction. Conclusion Most o f those held in mandatory detention are awaiting the opportunity to present their defense before an immigration judge as to why they should not be deported, but instead allowed to remain in the United States. Even though none of them are serving time for crimes looks and functions very much like a prison , and the time spent ins ide can stretch to months or even years . ERO considers detention to be an effective tool of interior enforcement practices and describes their successes in terms of deterrence to future illegal immigration attempts. However, the harsh conditions experienc ed by the detainees and the lack of access to the resources necessary to fight a removal order suggests that it is also a deterrence to attempting to pursue a case to stay. I have heard detainees repeatedly state both in private conversations and in immigr ation court that they chose to abandon their cases specifically because of the conditions of detention and the long periods of time they were kept there. In addition to its discouraging effects, the situation of detention also serves to severely limit the ability of those detained to find a lawyer, collect evidence, and prepare their cases, even if they have merit. For these reasons , mandatory detention is a very effective tool for removing undocumented immigrants without consideration for their potential l egitimacy , as well as for discouraging future immigration attempts.
88 CHAPTER IV METHODOLOGY APPROACH, METHODS AND DESIGN Necessity for multiple approaches It is widely agreed in academic literature that prison research presents a unique set of problems that cannot be addressed by a single approach or method (Beyens, K ennes, Snacken, & Tournel, 2015; Schlosser, 2008; Reiter, 2014) . Prisons (and even more so, immigrant detention centers) are very difficult to access, both structurally and bureaucratically, even when permissions are granted. Further, the little academic research : disconnected snapshots with much missing in between , producing an unfocused and incomplete image . For this reason, Karamet Reiter advocates approaching a prison research project in a multi disc iplinary, mixed methods manner. ologists, and ethnographic methods to scholars and case law analyse s to understand the relationship between lit igation and m understand it from multiple perspectives, each informing the other. And drawing on multiple methods allowed me use a variety of tools and resources to overcome the (R eiter, 2014, p. 424) Because I knew my access to detainees would be limited, and the participants would possibly be reluctant to speak at length due to trauma, interview exhaustion, or concern about their unfinished cases, I found it valuable to give attention to larger data structures, including official statistical data, to shape my interview questions and understand how these interviews fit into larger patterns. I used history to contextualize the legisl ative and political development of the undocumented immigrant and the rise of detention as a means of Legal scholars provide d insight into the relationship between
89 criminal and immigration law and the net result on detention processes and systems. Anthropologists informed the interview style and goals, while suggesting ways to overcome barriers to prison access. Thus, this thesis used a variety of approaches to suppl ement the limited literature on immigrant detention and focused on the situation of a single detention center and the perspective of those who experienced it to bring slightly more resolution to the overall picture . The Interview Project This research stud y used an exploratory, qualitative approach to increase knowledge of the processes and difficulties of presenting a case in immigration court to challenge impending depor tation from the United States. It used a narrative analysis to determine themes and patterns in how immigration detainees mad e sense of their situation as well as to explore the diverse ways detainees defend ed and justified their cases to be accepted as Finally, it id entified the resources that detainees had availa ble both inside and repare and present their cases. The study intended to interview up to 50 detainees held in the DCDF or immediately released and briefly residing at Casa de Paz in A urora , Colorado. However, because of difficulties with the project , only those residing at Casa de Paz were actually accessible. This approach is grounded in the theory of social constructivism (Berger & Luckmann, 2011) , a perspective that values historical and social context in constructing meaning from human experience. It also allows for the exploration of complex situations and multiple, even contradictory, viewpoints an d understandings of a situation (Crotty, 1998) . This is an important consideration, because the participants (the judge, ICE, the detainees
90 themselves, and their counsel ) that come together in immigration court each bring a very different experience, understanding and goal set to the courtroom, much of which is in conflict with the others. Finally, it is subjective in that it relies heavily on the views and meaning constructions of the participants themselv es and does not question the reality of their personal understanding (Creswell, 2014) . This inducti ve way of proceeding is a particularly useful approach when the topic is either a relatively new field of research or poorly understood, and both are the case with research into the perspectives of detained undocumented immigrants. Within social constructi vism, it is possible to begin with a very limited theory and modify it as the interviews proceed, as was actually the case in this research study. I n order to prepare for the interviews and inform the creation of the interview questions, I used a modified version of participant observation to understand the setting and conditions of detention . From my position as an ESL teacher, I had been able to observe the patterns of life inside the detention center , albeit in a limited manner I had seen the cells, ex ercise yards, workspaces and other areas frequented by detainees, but did not enter them. I y movement s and activities were always supervised by the guard on duty, which undoubtedly influenced both behavior s and conversation s that occur r ed . I change d wards approximately every 3 months over a two year period , limiting my observation of and participation with any one group , but also allowing me to compare different groups across classif ication distinc t ions and groupings by nationality . Through casual conversations before and after class with detainees, guards, and other staff members, I was able to gain some understanding of the attitudes, perspectives
91 and beliefs they carry, which in tu rn helped me better understand what the detainees told me in formal interviews. The Ethics of Prison Research Prison research with human subjects is carefully monitored because prisoners are deemed so vulnerable to exploitation . G reat care is taken to protect their understanding of the project they are asked to participate in, to safeguard their rights, and make sure that all participation is truly voluntary. Therefore, the design and execution of this project was examined under fu ll board review and the part that I actually completed was approved by the Colorado Multiple Institutional Review Board (COMIRB), protocol #17 1569. The level of vulnerability of this population to coercion is insightfully described by D ugos h, et. al., as follows: Criminal justice clients are considered vulnerable because they are regularly exposed to implicit and explicit threats of coercion, duress, deceit, and other kinds of overreaching harms that may compromise the ir autonomous decision making. In par ticular, there is a substantial risk that, as a result of their current situation, they may become convinced, rightly or wrongly, that their future depends on cooperating tha t may further impair their ability to make informed voluntary decisions. (Dugosh, Festinger, Croft, & Marlowe, 2010, p. 94) Van Liempt and Bilger elaborate on this insight that detainees may believe that de with the observation that asylum seekers (and likely others) sometimes must and interviews. After having been interviewed extensively by ICE officials, judges, lawyers, and others , and facing such dire consequences, they may be unwilling or unable to make autonomous decisions about what they actually wish to say . Their future literally does depend on matching the ir decisions about what they say and how they say it to fit the pre determined categories and acceptable narratives defined by immigration law. Van Liempt
92 and Bilger also point out that the isolation and discrimination that they experience in outside socie ty as well also heightens their sense of vulnerability (Van Liempt & Bilger, 2009) . In order to ensure that participants were well informed and that their participation was truly voluntary, an extensive informed consent form was discussed and given to each participant (Copes, Hochstetler, & Brown, 2012) . It contained descriptions of exactly what to expect from the interview, what would happen with the data, information that they will not receive any benefit from participation (either monetary or in terms of favor with the court), a d escription of the risks they were taking, and how the content of the interview would be protected and used . There was also disclosure about the types of information that cannot be protected and must be reported. The consent form itself and the content it includes is defined and required by law 47 . The greatest risk i n doing this kind of research was that compromising information w ould fall into the hands of ICE. It was possible that in the course of the interviews, the participants would reveal information no t already known by ICE and put themselves or others at risk. My notes being confiscated , subpoenaed, or otherwise compromised by ICE could alter judicial decisions or lead to the arrest of those not already known by ICE . Therefore, I created a coding system my physical notes were confiscated. I planned to use pseudonyms instead of the participants real names , limit dates to months or seasons only, refer to other people by general to the south. Physical i nterview notes were to be converted to electronic copy and encr ypted (using the Espionage program) for secure storage . The physical notes themselves were 47 Code of Federal Regulations, Title 45, Part 46
93 destroyed. While the use of a consent form is an important means of indicating that ethical procedures have been followed, it can also become a liability if the rese arch confidentiality is compromised. The consent form itself may become the physical link between the content of a particular interview and a specific person. Therefore, I obtained a Waiver of Written Consent to prevent any direct written connection betwee n a particular participant and a potentially incriminating set of information and a Certificate of Confidentiality to protect my research from subpoena . In addition, the interview protocol contained reminders about the risk of revealing certain types of information and confirmation that the participant actually d id want to include it. Several potential participants were willing to discuss their experience, but when presented with the consent form, wo uld not agree to a formal interview because they felt insecure in their legal status while their cases were still being settled. Their wishes were respected. A second, although less likely, risk was that there would be reprisals from either other detainees or facility staff inside DCDF , had I actually completed that set of interviews. Therefore, I planned to conduct follow up interviews with those who were still detained to ensure that that h ad not happened, and to provide information on how to file a compl aint both inside and outside the Facility if it d id . Another risk was that during the course of the interview, the participant would re experience emotional trauma from describing their reason for migrating, the journey itself, or their experience with de , the and empathy were important considerations as I conducted the interviews themselves (Van Liempt & Bilger, 2009) . Participants were also repeatedly reminded that they could choose not to answer questio ns that made them
94 uncomfortable or stop the interview altogether if they wished. Some of them chose to exercise those options. The While the views of the participants themselves are the main focus of ethnographic research , the researcher herself is still is the p rimary interpreter of the data. It is therefore clear from the outset, and the resulting biases to be considered in the interpretation of the results. I had personal experience and pre formed relationships with both the topic and the setting, as well as with some of the participants. I spent most of my childhood in an e thnically diverse neighborhood My husband and his family were immigrants themselves . As a result of my own int ercultural relationships, I had some experience with cultural and l inguistic distinctiveness, and recognize d that my own perspective was li kely different from those I would be interviewing. In addition, in 2012 13, I spent six months in Central and South America, studying the conditions that result ed in e migration from these countries. I was ly middle class, and understoo d that my own interaction with society was shaped by privilege and social power, making my experience very different fro m undocumented immigrants, particular ly those fighting deportation. In contrast, m was secure, and had always been, granting me the ability to speak and act in a way that those without legal status c ould not . Finally , as mentioned earlier, I had taught English as a Second Language classes inside the Facility for two years, and some of the participants in my research were previous
95 students from these classes. Some of the people I interview ed ha d known me first as have shape d how they respond ed to my questions and to me personally. While these participants may have been more comf ortable with me because they knew I had some experience with their circumstances and situation, that previous position of p ower, as well as my personal characteristics, may also have influence d th eir responses to my questions. For other participants, it was the first time we had met, and those characteristics may have been intimidating, distancing, or considered socially inapp ropriate as I interact ed with them. My experiences had most certainly shaped how I vi ew ed the subject of immigration and the detainees themselves . I believe d that immigrants ha d a valuable place in society economically, culturally, and as human beings, and I was sensitive to the issues of racism and discrimination inherent in detention, and sympathetic to the struggles immigrants ha d overcome as they aspired to build new lives in a new country. Generally, I would prefer to nativist one) that recognizes our own trade and military policies as drivers for much of the attempted migration to our country. In particular, I would like to see a path to legal status created for those who are undocumented. and a good portion of those held in detention wear blue meaning that they have no criminal charges , or only very minor ones United States for many years and have extensive ties to their communities. My own
96 disagreement with the blanket use of this term within the detention system was certainly a bias in how I heard and understoo d conversations. Finally, i t is particularly impossible for the researcher to rem ain dis passionate in such an environment, which makes integrity in recording experiences a difficult endeavor. The David Scott discusses the minefield of ethical issues in rep orting results that arise from research in a place so full of human suffering: Within such contested terrain the commitments of the critical researcher must be reflexive and rooted in principles and values which promote honesty, integrity and accuracy. Cr itical inquiry must be an attempt to uncover real experiences, whatever the shape or form. Research should not be a process of reconciliation or aim to justify the practices of the penal apparatus of the capitalist state, improve human resources management , or some further utilitarian goal. Nor must it be to uncritically reproduce or condone the exploitative power relations or naturalize their position. (Scott, 2014, p. 31) Therefore, it becomes crucial to reveal the re) and goals (discussed later) so they can be considered in the presentation of the results (Scott, 2014) . Setting and Participants The original project intended to recruit participan ts from two different sites. Late in the project, when it became clear that the primary site would not be accessible, I also began to attend immigration court in order to observe respondents as they presented their cases before the judge in attempt to gain some insight into how detainees present their cases without the aid of counsel . The primary research site was to have been the DCDF in Aurora, Colorado. As described earlier, it has the capacity to manage approximately 900 immigrant det ainees in a prison like setting. Interviewing inside would have been risky and emotionally difficult, but
97 detention provided access to a demographic not accessible in any other manner. They may not have lawyers to advise them, their cases h ad not yet been decided, and it was likely that some of them w ould be denied and deported. Those who lose their cases are normally deported before they have the opportunity to describe their experience and process, and their perspective is very rarely heard. It has also b een my observation that those without lawyers have a different experience than those who do. Their participation in the research project would have offer ed a valuable contribution to the little that is k nown about immigrant detention, which was a primary objective when the project was conceived and planned. The actual interviews themselves were to be conducted in a legal consultation room, a private space that could be monitored visually, but without a guard actually present in the room. It w as an unnatural and uncomfortable setting, which may have influence d what the parti cipants chose to say and how they cho se to say it. However, whatever they did choose to say would have brought valuable insight into the detention process. When it became c lear that research at this site was no longer feasible, I began to observe proceedings in Aurora Immigration Court . Normally, court is in session Monday through Friday from 8:00 am to 4:00 pm, with at least an hour lunch break between the two sessions. On Fridays, however, the docket is very limited. Court is open to the public, unless the respondent requests a private hearing, as is usually the case when a serious crime is discussed or when an asylum case is heard. I attended seven sessions between Februar y 20 and March 1, observing the proceedings under all three judges . During that time, 81 cases were heard, and of these, six were closed to the public. While I did not engage at all with those who appeared and presented their cases, this site did allow me to draw some
98 comparisons between those who had a lawyer to assist them in presenting their cases and those who did not. The second research site was Casa de Paz, a non profit organization that has a relationship with the Facility and has provided short term assistance to over 1,000 former detainees upon their release 48 . The home like setting was a relatively safe and comfortable place to talk with former detainees about their experience with the Faci lity and with Immigration Court (Van Liempt & Bilger, 2009) . However, because they had just been released, they were primarily concerned about contacting their families and o thers and making travel plans to return home. Interviews could only be conducted once they had made their arrangem ents, eaten and relaxed , and we had gotten to know each other through casual conversation. It was at this site that all interviews were conduc ted or arrangements were made for another site. Participants were to be self selected for participation at both sites . The only requirement s were that they be adults, were not pregnant, had not been identified as decisionally challenged , and had recently been held in the Facility. Inside the Facility, I had planned to recruit participants u sing flyers placed in the ward and possibly by making an oral presentation to the detainees and asking for volunteers to sign up . T he fact that the facility would have needed to approve volunteers to participate was likely to result in some bias , which must be recognized but c ould not be controlled . At Casa de Paz, the self selection 48 Casa de Paz is a non profit 503c that exists to serve the detainees both while they are in detention and immediately upon release. For those still detained, volunteers participate in a visitation program and send hand made cards and small gifts at Ch ristmas. They also run a daily shuttle in the evenings to pick up anyone who has been released and has nowhere to go, brings them back to the house, offers dinner and friendship, assists in making onward travel arrangements (including transportation to the bus station or airport), and allows guests to stay up to three days if necessary.
99 process was not subject to approval, as the pool of potential participants was simply th ose who were there at the time. I placed informational fliers at the Casa, but all participants were actually recruited by my hanging out, engaging in conversation, and asking if they would allow me to interview them formally. Language was an i mportant limitation i n this project. Besides English, I spoke Spanish with some proficiency. When I planned to interview inside the Facility, the sign up and approval process would have allowed me the time to arrange the necessary translators, but at Casa, intervie the of others who happen to be there. Some participants chose to conduct their interviews in English, but it may have been a second language for them. Some chose to be interviewed in Spanis h, a language that I speak, but not with the grasp of a true bilingual. Gatekeepers Gaining entry to the detention facility was very difficult because access is generally closed to all but staff, clergy, and a few volunteers. Entrance into the building involved obtaining official permissions from the warden , from GEO Group (who manages the Facility) and from ICE, as well as background checks and training. It also involved developing trust ing relationships with various levels of staff (Beyens, Kennes, Snacken, & Tournel, 2015) . I gained access to the Facility as an ESL teacher almost two years befor e I began the research project. Therefore, the guards, staff an d administrators , and especially the Recre ation Supervisor and his deputy ( with whom I interacted directly ) already knew me . Because I was a volunteer E SL teacher, the Facility staff already understood my identity and motives. However, while I was honest about my interest in d etention as a graduate student, I was careful not to reveal much about what I kne w or make statements that express ed an
100 opinion. Instead , I often engaged the guards and staff about their experiences and expressed my desire to form a balanced perspective when questioned about my interest . As they gener ously answered my questions and shared their experiences and opinions, I learned a great deal about how and why the Facility was run the way it was. The relationships formed before the research project was presented certainly smoothed the process of obtaining the necessary perm ission s . I n addition to permissions, I also had to negotiate the details of how the pro ject would actually take place with ICE, GEO, and the Warden . We were able to negotiate the recruitment plan fairly quickly. C ivilian transl ator to secure the necessary clearances, but they were not a problem. While I used a laptop regularly to teach my ESL class, it was decided that I would not be a ble to use it in the interviews and was restricted t o paper and pencil . The computer would have allowed immediate encryption of the interview , but physical notes necessitated careful monitoring of what would be written down. This was, however, feasible. The actual interview locat ion was a point of disagreem ent stalled. I was unable to complete this part of the project because I was not able to use the COMIRB approved consent form, and it would have been unethical to interview anyone without it. ICE had an internally approved consent form that they used to gain permission from the detainees whenever someone reque sted to interview them . It was very short, and simply gave permission to be interviewed. When ICE understood that I intended to use a different consent form, they requested a copy, which I supplied.
101 at the Field Office, who refu sed to allow me to use it , and offered no explanation as to why . After appealing the decision (referring to the applicable laws) , I was given permission to conduct the interviews, but without using the consent form, and so I declined. Instead, I appealed t intercede on my behalf. With his help, we arrived at a very tenuous agreement that I put before the COMIRB for consideration. I would use the complete content of the consent fo rm However, that compromise necessitated another full board review, and there was no time to complete it. I was unable to continue with this part of the research project. I also h ave a relationship with the director of Casa de Paz , who generously allowed me to conduct research there . It was she who initially arranged for me to meet with the Recreation Supervisor to begin teaching ESL classes inside the Facility. There was also a house manager at Casa who was responsible for greeting the guests and directing the volunteers as they picked up guests from the Faci lity, prepared meals, assisted in arranging their onward transportation, and sorted donations. He was a key informant in that he directed me toward those who might be willing to be interviewed, assured guests of my legitimacy and intentions, advised me on the best way to approach someone, and explained things that I did not fully understand. participants trusted him, an d he conferred that trust to me (Van Liempt & Bilger, 2009 ) . A final gatekeeper that I did not originally consider as such was COMIRB. Reiter argues that the structure and rules of the IR B process itself are an ongoing barrier to prison research . Few would dispute that protecting the participants is vital, b ut the process of approvals for qualitative research is combined with the much more complex process for
102 medical trials, resulting in requirements that are irrelevant and unnecessarily burde nsome for this type of research (Reiter, 20 14) . In addition, the process for submissions, decisions, and revisions took a great deal of time. In my own case, I spent six weeks preparing the initial application, requiring several in person visits and numerous e mail exchanges with several COMIRB staff members to understand the n ature of the questions involved and how to navigate the website. I also needed assistance from professors in identifying and using the disciplina ry language that was expected . The approval process and mo difications required another five months to complete. In the end, approval to research at the primary site was not completed , and approval for the secondary site, while granted, allowed for only five weeks to complete the research. Even at that site, permi ssion was revoked for a short period when it was unclear whether I would be able to secure a Certificate of Confidentiality. Interview Protocol Ethical interviewing requires careful attention to several aspects of the process. First and foremost, the struc ture and presentation of the questions must be carefully planned and approved by IRB . Of particular concern in prison settings is that the researcher does not ask questions or record information that would imply guilt or fu rther implicate the participant beyond the charges they are already facing (Schlosser, 2008) . The questions must be easy to understand and yet provide the opportunity to explore topics in more depth. Finally, the interviewer must consider the interests of the participant above all else, allowing them to guide how extensively a particular topic will be delved into. The researcher must also decide how much self disclosure she will give in the cou rse of the interview. Beyens et al describe the usefulness of self disclosure in building rapport, breaking down hierarchies in the relationship, and building respect for the participant as a
103 person. (Beyens, Kennes, Snacken, & Tournel, 2015) On the other hand, too much disclosure may result i n an unwanted relationship that extends beyond the boundaries of the research. In the pre interview conversations that I had with potential participants, I generally spoke some of my family, my background with both the Facility (emphasizing that I was not an employee of either ICE or GEO) and immigrants in general, how I learned to s peak Spanish, and whether I had ever visite home town. described by Bernard than a true ethnographic interview . The time to complete the interviews was often limited, and the questions were structured to obtain specific information as well as offer the opportu nity for more expansive answers (Bernard, 1995) . Sometimes the participant had enough time and interest to discuss their cases at length. Sometimes they were preoccupied with making the arrangements to get home, seeing their families, and finding out the state of their affairs after being detained for so long. Participants were allowed to discuss their cases for as long (or short) as they wished, in whatever way they wished to do so. Interviews were conducted using a pre planned interview protocol, usually with hand taken notes. T he stories that they wanted to tell me were often disjointed and fast paced, which made them difficult to follow and, in some cases, made accuracy diff icult to ensure. In spite of this, Schlosser points out that it is often how the story is told that is important , rather than what specific information is revealed, not revealed, or misstated. The emphasized importance of certain information and the percei ved connection between events and characters can reveal a great deal about how the interviewee perceived and created meaning from their experience (Schlosser, 2008) . Van Liempt and Bilger add to the issue that the ability to control what is being said, when, and how gives the participant a sense of control
104 over their own identity and their situation, an aspect that is c rucial to this particular set of participants (Van Liempt & Bilger, 2009) . In light of these perspectives, I gave attention to topics that the participants returned to again and again, whether or not it specifically met my goals . The interview questions were designed to focus on five specific topics. 1) First, they sought to establish the context of their case and their detention. The interview probed into why the participant came to the United States originally, how they became undocumented, and what esources that the participant had before their detention . 2) Second, the interview asked for some specific data that identified their legal position before the court and the type of case they had chosen to pursue. This information gave structure and meaning to later questions. 3) Third, the detainee w as asked about his or her first days in detention. This is a two most serious of these are the introduction of self deportation papers to t he detainee, and re establishing contact with family or community resources after being moved (sometimes several times) far from the site of the original arrest. 4) Fourth, the interview explored the longer term process of preparing and presenting their court case. It included specific questions about the availability of certain resources such as pro bono lawyers and the law library. It also allowed for more in depth discussion about how they prepared for their own case, their experience in court, and how they overcame barriers presented by the system and by the detention center.
105 5) Finally, it ask ed the participant to discuss their own opinions about the process, including what factors they thought were important for the judge to consider, whether or not he or she did. These questions were intended to provide insight into their understanding of why t Conclusion Attempting to conduct an interview project of this nature was difficult on several levels. The bureaucracies of both the detention system and COMIRB required a great deal of time and negotiation to reach an agreement on each detail of the project much more than I anticpated at the outset. A great deal of care had to be taken with the detainees and former detainees to ensure that in their participat ion, their stories would not be identified and used agains them before their cases are settled. Their dignity, suffering, control over how they would relate their own story had to be respected over my own goals. In addition , my own emotional involvement in the project was also an unexpected factor. The fa ce to face nature of the interviews themselves and my own (limited) experience with both detention and the conditions from which some of the participants had left behind brought a rawness to the project that I could not set aside easily . I nitially, I had planned for up to 50 interviews and several months in which to do them, but I was only able to complete six in a period of of five weeks . While Casa de Paz was a safer and more comfortable site for the participants, they were focused primarily on putting t he detention experience behind them and getting home to their loved ones , and many were unwilling to participate formally. In addition, the inability to arrange for a translator in advance made some potential participants effectively unavailable. While I o riginally intended to look for patterns within the responses of the participants, there were not enough to
106 realistically accomplish that goal. Instead, t hose participants who did agree to an interview provided a varied and diverse window into the current t rends inside this facility, which, combined with immigration court observations and my own ESL journals, gave me a platform to discuss larger trends that were happening in detention and immigration court at the time. I was very frustrated that I was una ble to complete the de tention site interviews. I believe that with more time, compromises could have been arranged among myself, ICE, GEO, and COMIRB that would have allowed me to actually conduct the interviews ethically . The information that may have bee n revealed would have been a valuable contribution to understanding the workings of the very opaque world of immigrant detention and its ability to deter the presentation of even a meritorious case in immigration court . While those who have been released h ave compelling stories to tell , they are a very different demographic than those who are not released. It is those who are still inside who remain somewhat invisible to the society that put them there.
107 CHAPTER V INTERVIEW ANALYSIS Introduction As described earlier, Casa de Paz, the secondary research site, was the only site that received COMIRB approval. It was a much more comfortable and less risky site in which to conduct interviews, which offered the participants both the time and the safety to talk about what they wanted to for as long as they wanted . However , the pool of potential participants was limited to those who had been released from detention either on bond or because their cases had been completed. All of the participants had a lawy er to assist them in their cases, which is a resource that few detainees are able to secure, making this demographic unlike the majority of detainees in a very important aspect. E ach of the participants represent ed a different and unique subset of the pop ulation held in the Denver Facility during the time I was teaching, observing, and interviewing. Their individual situations, the types of cases they pursued, and their approach to preparing their cases are illustrative of the several ways petitions for re lief can proceed and conclude. As they tell their own stories, they also bring attention to the challenges and obstacles faced by many others whose stories are still untold. Their stories create a window into immigrant detention, but t hey do not, nor are they intended to , represent a comprehensive picture. Between January 24, 2018 and March 1, 2018, I spent a total of 20 evenings at Casa. On some days, no one was released, or those who were released were retrieved by family or friends , I helped serve food, show ed them where they would be staying and what we had to offer them, visited, assisted in securing bus or airline tic kets for their travel home, and transferred them to the bus station or a irport to make their connection,
108 which all owed the participant and me to become more comfortable with one another. During that time, six guests agreed to participate in a formal interview, and all six will be presented here. All of the i nterviews were completed in a single sitting and lasted betwe en 20 minutes to over an hour. As agreed, names have been replaced by pseudonyms, and dates and locations are used only vaguely. Ali I interviewed Ali at Casa de Paz. He had been released on bond as his asylum case proceeded, and was headed to Tennessee, where he would live with a relative until his case concluded. His first language was Somali, but the interview was conducted in English, a language he could speak, but with some difficulty. I needed to ask questions slowly and simply, clarify often, and gi ve him plenty of time to respond. his two children. He would not elaborate on what that meant. He flew to Brazil, then traveled overland through Central America, presenti ng himself at the San Ysidro crossing three months earlier. He passed his credible fear interview, was placed in detention, and transferred to the Denver Facility. Once in detention, he diligently used every resource available to prepare his case. He atten ded the legal orientation and was able to secure representation for the duration of his case, although several different lawyers participated at different times. He used the law library software loaded onto tablets that were available in each ward and visi ted the physical law library to make copies. He spoke limited English but was unable to access a legal dictionary in a language he was more familiar with. Ali went before the judge three times, and all three times received translation services in Somali. He was happy that he had been able to explain to the judge in writing everything
109 that he wanted to say. Because he had no criminal record and a relative who wa s willing to take responsibility for him through the lengthy asylum process, he was released on bond. go back to California, because I liked what I saw there. Education i s key to achieve success in your life. Work is the center to survive, to be on the right path. I have two children in Somalia. I want to bring my family here. I would like to study global studies. I am a new yet been decided, and he will appear in immigration court again. However, his chances of receiving relief in his affirmative asylum case as a Somali are better than those from most other countries. Somalia is a very unstable country, with military and ter rorist factions vying for contro l, escalating violence, and a large refugee population in neighboring countries. The political conditions in the country are such that making a political plea for asylum is quite feasible. In 2016, a sylum cases from Somalia rec eived relief about 34% of the time (Office of Planning, Analysis, & Statistics, 2017) . There is a second factor that may influence the outcome of his case. A botched ICE deportation attempt to return 92 Somalis in December of 2017 has brought media attention to abusive detention conditions, to to the question of whether in the rush to deport, asylum cases are being given a fair hearing. It also briefly brought public attention to the reality faced by most of those in detention that after all the cost, effort, and suffering endured for the chance to plead asylum, most will lose their appeal and return to their country in shackles. Wh ile Ali was not on that flight, a s a result of the news spotlight, the cases of those on that flight are being re opened in federal court (Saleh, 2018) , with possible influence on the outcome of future Somali cases.
110 a sentiment expressed by all of the participants. He also saw his entrance into American society as a new start, full of promise, something he meant to take full advantage of with a desi re to pursue education also. David I interviewed David at Casa de Paz. It was his second night at the Casa, and he had already spoken with his relative and made his travel arrangements for later that night . We had had a casual conversation the previous evening when he arrived, and he was comfortable, relaxed, and willing to participate in this interview. David was from Haiti and had experienced the massive devastation resulting from several natural dis asters and a cholera epidemic in recent years. Like many with no opportunities in the struggling country , he had gone to Brazil to work . After working a few months there , the political situation changed, as he explained : people e, he joined others in the long over land journey to the United States. He had arrived at San Ysidro approximately seventeen months earlier, presented asylum officer. He stated that he had been the target of a gang in Haiti, and that Haitians were being killed in Brazil , and so neither country was safe for him . Based on this, he passed , and was placed into detention to await a decision on his plea. After being processed in California, he was transferred to the Denver Facility.
111 After arriving at the Denver Facility, he attended the legal presentation, and began the process to secure representation. He was one of the few detainees whose case was considered meritorious and was referred to a pro bono lawyer . She spoke French, Creole, Spanish and English, so he was able to comfortably discuss his case with her. When I interviewed him, David described his keen interest in understanding the progress of his case, so he used the law library and tablets in the Facility and asked ICE and GEO to provide explanations and translations of his paperwork in Creole or French, although he did speak English fairly well. He appeared in court on seven different occasions, twice without the presence of his lawyer. He had a Creole translator each time he went to court. He specified that he had been able to explain his case to the judge himself, in his own words. He never requested to be released on bond , which is why he had been detained for so long . At the time of the interview, he stated that his case was almost closed, that he only had one more appointment in court to keep. He was unsure of his status, but believed it to be Withholding of Removal , which is similar to asylum, but with fewer benefits, and no opportunity to adjust to LPR status . He would live with a relative in New York. , you need to behave your will happen, they will deport you. I cannot imagine a time when this group (the gang in Haiti) will not be there waiting for me. I need to work and help people I live with. I will learn David , li ke Ali, had successfully navigated his early days of detention and used every resource available to him . However, his case illustrates a problem that Haitians, in particular, are currently facing when they apply for asylum . While David did not discuss the details of
112 his case, many Haitians who have spent time working in Brazil do not qualify for asylum on Affairs, who have developed a framework for deciding whether an asylum seeker has actually been asylum in the United State s . While in Brazil, Haitians were consi dered refugees and therefore beneficiaries of a limited humanitarian visa, which included work permits and whose renewal depended on the applicant having a job. However, as David mentioned, as unemployment rose in Brazil, anger was focused on Haitian immig rants, and they either did not or could not renew their humanitarian visas (Institute for Justice and Democracy in Haiti, 2017) . Thus the Although both David and Ali had come fro m devastated countries and both were able to successfully express credible fear, their situations were seen very differently, resulting in different outcomes . initial reason for leaving Haiti is primarily economic with the added factor of localized violence, but the situation that Haitians encountered in Brazil could be considered persecution targeted at a racial group. This complicated situation illustrates the often blurred boundary between economic migration and migration as a result of targeted persecution, as both Holmes and Mahler discuss at length (Mahler, 1995; Holmes, 2013) . However, because he had successfull y pled credible fear, he could not be retu rned to Haiti. Many Haitians are not, at least not immediately (U.S. Department of Homeland Security, 2018) . Withholding of Remo val means that David remains under a removal order, but until the situation improves in either Haiti or Brazil, it will not be carried out . While he
113 will be allowed to work in the United States , he will not receive any of the benefits of asyl um and is ineligible to apply for LPR status . In 2016 2017, more than 15,000 Haitians presented themselves at the San Ysidro border crossing requesting asylum , most with similar . Of these, only 100 were actually granted asylum in 2016, representing 7% of requests (Department of Homeland Security, 2018, Table 17) 49 . comments about his future expressed a strong desire for the judge to know that he underst ood that it was not his country and would b . In th e meantime , he also had a little dream for himself whatever time he spent in America would give him the Jos Ã© I interviewed Jos Ã© at the Greyhound Bus Station in Denver. He agreed to be interviewed while at Casa de Paz but requested to complete it at the Greyhound station while he waited for his bus home to Utah . It was late at night, and the station was quiet, with no one nearby. JosÃ© did not speak English, so the interview was conducted in Spanish. JosÃ© was from Mexic o and had been living in the United States for 17 years, although never with legal status. He originally came as a young man afte r his cousin was killed in Mexico . His mother had paid the necessary fees, and he and two others made the journey to the United States . He said that he had pled asylum when he first arrived at the border, but the outcome of that plea was unclear. He repeated that his possible that his plea failed and he ended up ma king the 49 Stat istics were not yet available for 2017 at the time of this writing, but they would have been informative, as most of these cases would have been heard during that year .
114 dangerous desert crossing with a coyote . He had been working for many years in Salt Lake City, and only had some traffic incidents o n his record. He was arrested there on immigration charges. He was moved twice before arriving at the Denver Facil ity. He attended the legal orientation but did no t attempt to secure a lawyer th rough that program. Instead, his mother and padrino (sponsor) arranged and paid for his representati o n from Mexico . He never used there. Some of his papers came in English and some in Spanish, but he did not request translations because he gave everything to his home town his detention, and his lawyer explained his case on his behalf each time. He was released on bond and his case was moved to Utah for a final decision. JosÃ© seemed to understand very little about t he details of his case and did not know what t he outcome might be , but he was resigned to his fate My mother and padrino JosÃ© was fortunate that his family in Mexico was able to arrange an attorney for him. However, ev en with an attorney, his chance of receiving rel ief in a defensive asylum case as a Mexican national was very low only 4% of defensive asylum cases received favorable outcomes in 2016. Central American nationals in similar situations experience similar rates (Department of Jus tice, 2017) because their reasons for emigration do not easily fall into one of the political categories described earlier . In spite of the widespread violence throughout
115 Mexico and Central America , they are considered economic migrants, which do not qualify for asylum. Based on my observations in immigration court, those who were in detention as a result of an Order of Removal had a very difficult time finding an attorney unless they had someone on the outside who could engage one on their behalf. Mo st of the Mexicans and Central Americans (as well as others) that I spoke with during class stated that they had repeatedly left messages at the phone numbers listed for pro bono lawyers but had received no response. Of the 30 detainees that I observed in immigration court in which the respondent spoke Spanish only, or named Mexico or a Central American country as their home country, 21 did not have attorneys to represent them . Eight of those cases resulted in either removal or voluntary departure at the hearing that I observed . One was denied bond and removal proceedings continued. Two entered defensive asylum pleas. Eight requested mo re time to prepare their cases but seemed unclear on what kind of case they would pursue, alth ough the judge advised four of them on what they may possibly be eligible for. Two were released on bond. Of those who had representation, most had secured it so recently that the attorney did not yet have the paperwork on their client , indicating that the very short time allowed to secure an attorney was insufficient . Only two had attorneys who were familiar If the detainee cannot afford to hire a lawyer and does not have someone who can hir e one on their behalf, the very short period of time to find one from the isolation of detention is a very effective deterrent to filing a case for relief and being able to effectively pursue it. Attempting to self represent is very difficult and full of p otential m issteps . The paperwork must be completed in English for each form of relief requested, which is difficult
116 to do if the respondent does not know English or is illiterate. Others did not understand the court proceedings and did not know what inform ation to present and when. Some made self incriminating confessions when they did not have to. Some may have qualified for a bond hearing to pursue t heir cases outside of detention but did not even attempt to do so. When offered voluntary departure (allowi ng for a possible legal re entry), several chose the order of removal instead which imposed re entry bars because it was free. Without the protection of a lawyer and knowledge of the law, they are easily defeated. As mentioned earlier, RMIAN offers pro se workshops in the Facility, with the express purpose of identifying which forms of relief the detainee may qualify for, and assistance in preparing that case. However, only 309 took advantage of that resource in 2017, as compared to the thousands that p otentially passed through. Exploring why the resources offered by RMIAN are not utilized by more detainees is a subject worthy of further research. C aroline I interview ed Caroline at Casa de Paz. She had been released on bond pending the outcome of her asylum case. While she initially agreed to be interviewed, she later became nervous that the interview would affect the outcome of her case, and so limited her answers to some questions, and declined to answer others . She wa s a young Sikh woman from Indi a, which in itself is unusual 50 . She arrived at the San Luis, AZ border the previous October , but did not specify what that meant. She passed the credible fear interview, was placed in detention, and was transferred t o the Denver Facility. 50 Women compromise roughly 10% of the detained population in this Facility, and I have rarely seen Sikh women.
117 She had family in California who immediately hired a lawyer for her. She herself had done little to understand or participate in her case , and therefore did not attend the offered legal orientation, use the law library, or request any assistance. She appeared before the judge t hree times during her detention and was provided a translator in Punjabi for each of her hearings, although she read and spoke a reasonable amount of English. Her lawyer filed for a bond proceeding on her beha lf after her first month in detention, which had just been granted , and she had been released . She was going to her family in San Francisco, and her asylum hearings had been moved to immigration court there. She declined to talk about the future she saw fo r herself in America. careful , they were similar to the responses from other Sikhs that I observed in court and talked with in my ESL class. Of the more than 80 cases that I o bserved in immigration court, 33 of them were Sikhs requesting asylum . Of these, t hirty had lawyers representing them, two requested additional time to find a lawyer, and only one was attempting to proceed on his own. This rate of repre sentation was extraordinary for those presenting cases from detention. Most of the cases that I observed were related to bond hearings. Caroline had been in detention for four months, but her bond hearing had been scheduled within one month of her arrival. In 12 of the 33 Si kh bond hearings that I observe d , then men had arrived at the border in early December , indicating that they had been held for approximately 10 weeks before their bond hearings. A s each of the men appeared before the judge to answer the questions about his crimin a l status (none for any of them) , his family in the United S tates, and his relationship with his spons or s, the answers that they provided the judge were strangely similar, and almost identical in many cases. The lawyer representing DHS was suspicious of
118 sev eral of the responses and asked much more detailed questions about their relationships many bedrooms it had. Meanwhile the lawyer Googled the address to verify their answers. One was further questioned because he had glanced down at the address of his sponsor instead of reciting it from memory. All were able to answer the questions sufficiently . All of the bond requests that I observed were granted, also an unusually high statistic. In comparison, I observed seven non Sikh bond hearings in which a decision was made. Three of these were granted bond offers 51 . Two of these had an attorney, and the third had his family present in the courtroom. A ll three had only minor criminal records and could give a permanent address. None of the four who were refused bond had an attorney. The stated reasons for the denial of their bonds were aggravated felony charges (two) , which require mandatory detention, a nd no clear, permanent address (two). The unusually large percentage of represent ation among Sikh asylum seekers and the standardized answers given in immigration court has led to widespread belief that their journeys from India through South and Central A merica to the Mexican border are managed by skilled and reliable avel agents . The services they receive are said to continue into the United States with the provision of lawyers to handle their cases both in and out of detention, including bond fees, a nd may even include the arrangement of sponsors in the United States while they a wait a decision on their cases, one of the deciding factors in a bond decision. The cost is said to be $38,000 to $46,000 per person (Noriega & Templon, 2016 ; Singh, 2017) . Th e majority of the Sikhs that we received at Casa de Paz requested to be taken to the Sikh 51
119 Gurudwara (rather than the airport or bus station) , which was prepared to handle their onward transportation, indicating strong community support for recent arrivals. Like the Haitians, Indian Sikhs have requested asylum in large numbers in recent years. Between 2014 and 2016, almost 23,000 Indians presented themselves at a border and were deemed inadmissible because they did not have papers, implying that they express ed credible fear and requested asylum (U.S. Department of Homeland Security, 2018) . During that same period, 6,043 applications for asylum from Indians were received in EOIR, of which 978 were actually granted (Office of Planning, Analysis, & Statistics, 2017) . Many are still pending, so it is unknown how successful this highly organized and expensive means of navigating the asylum process is. The three merit hearings for asylum applications that t ook place during this period were done in closed court, and so I was unable to observe them. Emad I interviewed Emad at Casa de Paz. He had been released on bond and was headed to Nevada , where he had been living for several years. He was most concerned a bout straightening out his finances because he had lost a business and a car while he had been in detention and wanted to find out whether he could recover any of it. He was quite angr y with ICE about his detention and wanted to talk about it. Emad had come to the United States in the early university student but when one of his professors was publicly shot, he became afraid and decided to leave. All of his brother s had already emigrated; he was the last member of his family to go. He left behind a wife and a young daughter , with whom he would not reunite again for many years .
120 He was also a Christian, a religious minority that has recently faced brutal persecution from ISIS. He already had several family members i n the United States, and originally entered on a tourist visa. His brother had filed for a family based visa soon after his arrival , but it was 5 th priority, and he would have had to return to Iraq to complete the application. Instead, he applied for and r eceived h is LPR status in 1986 under IRCA. convicted of a financially related felony, served more than one year, and was released. In the 52 and got a pro bono lawyer, but missed his court date and lost his LPR status. He was arrested at that because he could not secure travel documents for deportation. In June of 2017, ICE came to his home to arrest him for that outstanding Order of Removal as part of a larger mass arrest of undocumented Iraqis in the United States. He spent time in detention facilities in Pahrump, NV and in Florence, AZ before being moved to the Denver Facil i ty. When he was first booked into detention, he was presented with self deportation papers, which he signed. He was told , and believed , would be release d quickly, in 90 or 180 days. If I followed the rules I would get a bond While in Florence, he became a plaintiff in the Hamama v. Adducci case . As a plaintiff, the ACLU provided him with a lawyer, who reversed his self deportation 52 It was unclear whether the original charge was a felony or an aggravated felony. However, it became aggravated retroactively under the IIRIRA law.
121 acceptance and managed his Asylum and Withholding of Removal pleas through his transfer to the Denver Facility. He himself was also very interested in understanding his case and used the law library extensively. He ended up only coming before the judge one time, for the bond hearing. He does not know what the outcome of his case will be. The cases of all Iraqis affected remain before the court. What he most wanted to tell the judge was that his felony charge was very old and did not involve violence. He missed his court date because he had been misinformed by his lawyer and went on the wro ng day . Because the outcome of his case was very unclear he was most concerned about his immediate future, and whether he would get his LPR status back. He spoke a great deal about the long and productive years he had already had in t he United States and could not underst and why he had been arrested so many years later . He felt that it was very unfair and made no sense, and said so repeatedly. particularly interesting for a few reasons. First , it illustrates the early pitfalls in the detention process that can quickly derail even a valid request for relief. On his first day in detention, he was presented with self deportation papers, and threatened that if he told that if he did, he would be released quickly 53 . It is a threat that I have heard described by other detainees in more casual conversations, and it is very misleading . Others have described watching fellow detainees sign them without ever knowing what they were because they could not read English or because they could not read at all. In addition, in signing, he 53 agrees to leave the United States at his own expense, within a certain period of time. The cur a Removal Order, which means that the person can attempt to enter legally at some future point.
122 may not have understood that he was waiving his right to appeal for any fo rm of relief, including asylum. His lawyer was able to reverse the self deportation papers before his removal could be carried out. is beginning June 11, 2017. All had been under final or ders of deportation for years but because of conditions in Iraq, had been allowed to stay under supervision. The sudden mass arrests were part of a political action that targeted a specific ethnic group, an ironic juxtaposition with an asylum plea that req uests relief from political targeting. Because the ICE operation resulted from of a specifically negotiated deal between the Trump Administration and Iraq that involved Iraq accepting their repatriations , the deportation processing w as being rushed, and de tainees were being transferred around the country, limiting their ability to secure legal representation and separating them from families and communities that could provide them assistance in fighting their cases . The concern that they were being returned to a situation that could result in them being targeted for violence and even death was clearly in violation of national and international law , and prompted the ACLU to file a class action lawsuit on their behalf and a stay of removal until each and every case could be given a proper hearing (American Civil Liberties Union, 2018) . The case remains before the court. related, non violent conviction and served his time before the IIRIRA took effect. He also held legal status at that time. The one year threshold that changed felonies into aggravated felonies for non over one year sentence that resulted The retroactivity of the IIRIRA laws has been a
123 particularly troublesome aspect of the law and has been scrutinized for limits since its enactment (Ishii, 2014) . Carlos I interviewed Carl os at Casa de Paz. His wife and some close friends were driving in from Wyoming to pick him up, and he was very excited to see them and go home . He agreed to be interviewed while he waited. Carlos had been brought to the United States at the age of 12. He had been very sick, and his parents could not get him treatment in Mexico, so they brought him to the United States for medical care . He had received DREAM er status during his teen years but was accused of a crime and had lost it. He has a wife who is a U.S. citizen. He had a criminal case pending in Wyoming, which likely triggered his arrest by ICE last summer . He had posted bond in that case, but had been arrested before he could appear , and was concerned about whether he would be penalized for not appearing. He had been transferred three times before he arrived at the Denver Facility. Like Emad, h e also described being presented with self deportation papers on his first day. He says th ey were the last item in a stack of other papers that he was required to sign, and there was no explanation offered about what they were. He recognized them and refused to sign , but his friend did sign ife secured him a lawyer early in his detention, and he had the same lawyer throughout the duration of his case. Therefore, he relied on his lawyer and neither knew about nor used the legal resources available to him in detention. He applied for Cancellation of Removal based on the fact that his wife had a long term medical condition and he was her sole care provider and support. He saw the judge four
124 times as his case progressed, and while the attorney spoke on his behalf each time , he insisted that they discussed beforehand and agreed on what the attorney would say. At one point in court, the lawyer for DHS addressed his tattoos and suggested they represented gang activity, so he was asked to remove his shirt and explain the meanin g of each one , denying that he was involved with gangs . At another point, DHS questioned him about his pending case in Wyoming. His lawyer prevented that questioning, claiming improper arrest and possible self incrimination. His request for Cancellation wa s granted, he was released without bond, and w ould be filing for LPR with USCIS. known pitfalls encountered in court, and what could happen when an inexperienced person lacks the protection of representation. Carlos w as questioned about an outstanding case, and had he answered those questions, he could have incriminated himself. It was his lawyer that protected him, explaining to him that he was not required to discuss a pending case , even in court. In contrast, one of the respondents that I observed in court was similarly asked to discuss a pending case, and although the judge actually did incriminate himself. tattoos are also a potential problem, even though they are neither illegal nor grounds for inadmissibility. They are, however, of great interest to ICE, which has a unit specifically dedicated to gang activity 54 and must be addressed with great care in court. Carlos was very concerned about w hat the judge thought of him person ally, especially since he did not discuss his outstanding charges in court concerned about offending the judge. I wanted him to understand that the accusations were 54
125 false and explain why. I wanted him to see what really happened. I wanted him to know who I am. I wanted him to know able to convi nce the judge of his innocence, he wisely followed the advice of his lawyer. for h re. She deserves some happiness. I was released because of my was technically called Cancellation of Removal for a Non L awful Permanent Resident , based on the fact that he had been living in the United States for more than ten years , but without legal status . His lawyer likely made sure his case was heard very early in the year (as opposed to late last year) because th e benefit is subject to an annual cap of 4,000. Once the 4,000 cases are granted, no more will be granted in that year. For this kind of case, meeting the 10 year residency and identifying a close relative with legal status are usually not difficult . In co urt, if they clearly disqualifying conviction, the judge frequently suggested that the respondent consider that plea. case, crucial to a successful case, but also difficult to prove , because the court is only interested in whether it will be a hardship for the citizen or LPR left behind. Carlos was able and his role as her sole caregiver to demonstrate that.
126 Like David, it was very important for Carlos that the judge understood that he considered it a privilege to stay, and wanted him to know t requested not be recorded), and his deep desire to care for her as well as he could. JosÃ©, David and Ali all mentioned family members t hat were dependent on their successful plea to remain in the United States and expressed deep concern that they would be able to care for them from their new position. Conclusion The above cases are valuable in that they put a human face on the more common types of relief requested from detention as well as illustrate the many obstacles that are encountered by those who attempt to defend their They also illustrate which situations are more or less likely to be successful. Although the overall project was not completed as planned, the limited data that was collected provided valuable insight into some of the impor tant current trends and issues that are experienced by those who present cases from detention. Clearly, the most important factor to the success of a case is legal representation. Not a single case that I observed was successful without it. Not only did the lawyer guide the client through the complex variety of hearings and present cases that attempted to fit the nar rowly defined means of relief, but they also protected their clients from making potentially catastrophic errors during proceedings. They were able to reverse self deportation orders signed in ignorance, advise their clients on what they did or did not hav e to talk about, provide translations for all documents received, prepare their clients to respond to questions in a way that supports their case, get their clients released on bond while they awaited their hearings, and schedule hearings at a time that is
127 lawyers actually prevented a potentially illegal mass deportation that could well have resulted in many deaths. As helpful and valuable as a lawyer is, the chances o f winning a case remain very low, even with representation. For thos e who present asylum cases, they must prove that they are personally being politically targeted in order to succeed. Natural disaster, unchecked violence, disease, hunger, unemployment, an d displacement as heart wrenching as they are do not qualify for asylum but might qualify for some form of Temporary Protected Status, at least until an administration decides that it is no longer in the national interests to continue that protection. Finally, a close family member who is a citizen may be able to offer their The organization and systematic approach to asylum cases by the Sikh community, however, offers an interesting contrast to the individualized approach used by most people held in detention. Several ethnic communities in the United States are organized enough that they may find this approach valuable.
128 CHAPTER VI CONCLUSION When Presiden implemented the harshest possible interpretation of existing immigration laws to date. Within a few weeks, the Department of Homeland Security Secretary John Kelly issued a memorandum defining exactly how that order would be carried out (Kelly, 2017) . All previously enacted policies that conflicted with the state immediately rescinded, including any protections in place or priorities that exempted or shielded certain populations. The re instatement of Se cure Communities and 287(g) programs in spite of serious and meritorious ethic al challenges and significant resistance from communities across the United States wa s effected immediately, allowing state and a federal responsibility . Enforcement and Removal Operations (ERO) was charged with the major part of actually carrying out the mandates. In its first year of operating under the mandate, with an increasing percentage representing those wi those targeted. The rise in the number of arrests, particularly those of non criminals, resulted in a corresponding increase in the numbers of appeals for relief, wh ich in turn, increased the demand for detention space while those appeals waited for hearings in an already severely backlogged immigration court.
129 Detention is a unique place within the immigration system. It is within this space that all of the immigrati on laws, beliefs about national sovereignty, societal fears , national prejudices, foreign policies, corporate goals , and detention standards converge with the single goal of removing unwanted populations a s expeditiously as possible. Because it is so difficult to access and document the inside of detention centers, t he opacity of its processes and systems have prevented detention from receiving the same level of academic and media attention as border prote ction or interior actions. The limited informat ion that exists comes from lawsuits and legal briefs created by immigration lawyers, official statistical data put out by various government offices, and the cautious and limited statements made by former detainees who were able to present a successful cas e for relief. Together, they produce a However, the most important consequence of this lack of understanding of immigrant detention is that it denies the general public an awareness of the consequences of the laws and policies that they vote for. Drawing on my own experience as an English teacher inside DCDF, observing the daily routines and experience of detainees and listening to their stories as they attempt to understand their situation, I developed th is project to formally document what they are experiencing away from the eyes of the general public, and in particular those who attempt to defend themselves without legal representation. Had the project been accomplished as intended, it could have offered some insight into who chooses to fight for the right to stay and why they believe their reasons have merit. Focused questions regarding the availability and ease of use of required resources could have offered a documented counter argument to compliance c laims of this privately run detention center as well as a useful tool for groups pressuring for change. Finally, the interviews had the potential to further expose the gap
130 between the offici al justification for detention to protect the safety of the comm unity from dangerous criminals and the country from the national security threat present and the real situations of those who are detained. While the project was unable to be completed as planned, it did present six very different situations and approaches to presenting a case for relief while detained. Although each participant had secured legal representation and won some form of relief from deportation, their descriptions of the minefields they navigated illuminated the obstacles that cause others to fail. The uniqueness of each story offered insight into current immigration trends, legal and logistical issues at the forefront of court proceedings, and the myriad of ways that pleas for relief can be silenced before they can even b e heard. One of the few rights that detainees have is the right to have their case heard before a judge in immigration court. However, as arrests in crease and courts face more pressure to expedite hearings , detention becomes an increasingly valuable means of either discouraging potential applicants into withdrawing their cases or preventing access to the resources that improve their chances of success. This thesis demonstrated the vital importance of securi ng legal assistance in order to successfully navigate immigration law and court procedures. It also illustrated the reasons that detention makes that key resource inaccessible for most detainees , and some of the many ways that cases can be derail ed without guidance, suggesting that this silencing is the primary purpose of some detention facilities, including the Denver Facility. In spite of everything, detention center populations swell as desperate people continue to present themselves at the border and re quest asylum, braving the long periods of detention and long have lived here for many years, established homes and families, and become an integral part
131 of their communities be fore they were arrested continue to fight to stay, to defend that they Each of the participants interviewed in the course of this research project expressed the values and core beliefs about what it means to be an American to prov ide for family, to learn new things, to work hard, and to contribute to the society that is, at time s , hostile to them. the harsh enforcement of current immigration laws, there is also a growing and increasingly vo cal demand for reform. Those 11 million people who are already settled in the United States , while they lack documents, actuall y are part of their communities and known by their neighbors, friends, family members, co workers, congregations , and fellow stud ents. Undocumented immigrants are taking to the streets, demonstrating, demanding the attention of their local leaders, and and those who know them are joining the m (Dowling & Inda, 2013) . Currently, more than 170 cities and counties and six states across the United States hav e passed some kind of sanctuary laws in direct defiance of the Executive Order and with the intent of protecting and including all of the members of their communities. It is time to reconsider who we are as a nation all of us and to reform our laws to refl ect that.
132 VOCABULARY AND KEYWO RDS Administrative arrest T his term is used for those who are arrested for a civil vi olation of immigration law only not a criminal violation and will be brought before an immigration judge to decide whether they are, in fact, re movable from the United States. At large arrest This type of arrest is made within the community me, job or any public location. While all those who reside in North and South America can legitimately be the United States of America because there is no other easily managed term to use instead. Expedited Removal The IIRIRA authorizes the DHS to quickly remove anyone deemed other than a designated border crossing. They have no right to appear before an immigration judge unless DHS chooses to pursue removal proceedings. The only possible relief is if they express credible fear and pass an interview confirming that, or if they are able to demonstrate that they actually do have the legal right to be in the United State s. Illegal used at times only to describe behaviors that are in violation of the law or to demonstrate
133 Immigration offense This category of violations includes illegal entry in to the United States, illegally reentering the United States after deport ation, willfully failing to depa rt when so ordered, willfully remaining beyond days allowed on conditional permit, falsely representing oneself to be a U.S. citizen, working without proper authorization, and bringing in or harboring any aliens not duly admitted by an immigration officer. Return This general term includes voluntary returns , volunta ry departures, and withdrawals under Docket Control . Removal Proceedings Those who have been arrested in an interior action must receive a decision of removal in formal proceedings before an immigration judge. If they are ordered removed, they are detained and physically taken to their home country by ICE. for a certain number of years. Self deportation This term sometimes refers to voluntary departure. If it is offered by a judge while in removal proceedings, the requirements and consequences will be fully explained. However, self deportation papers are often included among the many others ICE does not explain what they mean or even indicate what they are. Many detainees sign them without ever understanding what they are or even being able to read them. Undocumented Immigrant / non citizen / migrant / unauthorized immigrant In the interest of style and the avoidance of repetition, a variety of terms have been used to describe those members of our community whose legal status is in question, whether they arrived without inspection, overstayed a visa, have expired or incompl ete paperwork, or are not in compliance with removal orders.
134 Voluntary departure Under certain circumstances, the judge allows the detainee to voluntarily leave the United States, at their own expense within a certain period of time. This allows them a l ittle time to arrange their affairs and spares them the imposition of entry, which allows them to attempt to enter the United States legally sooner.
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