Immigration detainee transfers: a costly game of musical chairs

The elaborate practice of shuffling hundreds of thousands of immigration detainees between the nation’s detention centers deprives these individuals of access to legal counsel, places them in more rigid court systems, and results in wrongful deportations, according to a new report released by Human Rights Watch.

The report, released last week, also found that the practice of transferring detainees is rising dramatically, with 53 percent of the decade’s 1.4 million immigration detainee transfers occurring during the past two years alone.

A second report from the U.S. Department of Homeland Security’s Office of the Inspector General, also last week, echoed many of the concerns presented in the Human Rights Watch report. Inspector General Richard L. Skinner found that ICE officials frequently did not follow the agency’s own standards when transferring detainees. Detainees, ICE officials confirmed, are frequently transferred away from their attorneys with no notification, even though they often have a high probability of posting bond or, conversely, despite having active arrest warrants in the area where they were previously held.

A third report, by The Constitution Project, shows that immigration detention centers are overutilized, and that immigrants are held for long periods unnecessarily.

Together the three reports show that the problems local immigration attorneys consistently contend with are both increasing and widespread. Texas received the most detainee transfers in the past decade, according to the Human Rights Watch report, with detention centers in Port Isabel and Raymondville making the list of top facilities receiving transfers.

The report’s author, Alison Parker, says the impact of transfers can’t be overestimated. There is no public database to track detainees, so they are sometimes "lost" for days or weeks before family members and attorneys are able to find them. Attorneys are not always allowed to represent their clients telephonically, and most detainees can’t afford to fly attorneys long distances.

"The law is literally changing beneath people’s feet," Parker said, referring to the different immigration circuits that divide the country into a patchwork of outcomes for detainees. In South Texas, which falls under the jurisdiction of the United States Court of Appeals for the Fifth Circuit, the judges follow legal precedents that are particularly unsympathetic to immigrants, Parker said.

Jodi Goodwin, a Harlingen immigration attorney, says many of her clients are transferred to a region with no relationship to the crimes they committed or the lives they’ve built in this country. Offenders in the criminal justice system are afforded the right to a trial in the jurisdiction where the crime was committed. Although immigration detainees are not necessarily guilty of any crime, they are held for extended periods without the right to stand trial in the area where they are apprehended, she said.

Four of Goodwin’s current clients illustrate the predicament.

"These were young kids, coming to the U.S. when they were 2 to 4 years old," Goodwin said of her clients, who are from Guyana, Jamaica, India and Haiti. "All of them grew up in New York and are now 21 to 28. For all intents and purposes, they’re as American as American can be, with those big Brooklyn accents," Goodwin said. "Then they get a misdemeanor, two counts of possession of marijuana."

The offenses happened when they were teenagers. For an American teenager they would be a forgotten part of adolescence — being caught with a joint during a traffic stop. Years later they were all picked up and detained.

In New York, Goodwin said, these men would have been able to demonstrate to the court their eligibility for discretionary relief. The crime would be considered a misdemeanor, and with the testimony of their family members and professors, they’d have a good chance at staying in the country.

But soon they were shipped to South Texas, to the Fifth Circuit. Suddenly the misdemeanors became aggravated felonies.

"The only thing here is their body," Goodwin said. "The only reason they’re here is because ICE brought them here."

At least in the case of these detainees, they were able to locate Goodwin and hire her. For many others, without family connections or a clear understanding of the U.S. legal system, a transfer can mean their ties are cut off to whoever might have helped them.

Goodwin is one of a handful of immigration attorneys in the Rio Grande Valley, which has one of the worst ratios of attorneys to detainees in the nation. Before she had children Goodwin was working 120 hour weeks, always with the presence of mind that if she helped one less person, that person would most likely be deported, sometimes to a perilous fate.

"ICE knows there’s not a lot of lawyers down here," Goodwin said. "The system is built to break somebody down. The system will crush a person’s spirit, until they just give up. Until they say, ‘Get me out of this madness.’ "

In fact, the Human Rights Watch report shows that asylum seekers with lawyers won asylum in nearly 50 percent of cases, while those without a lawyer won just 16.3 percent of the time.

The Human Rights Watch report did not find evidence of intent on ICE’s part to deprive detainees of legal council. However, Parker said that ICE’s primary reason for transferring people doesn’t necessarily hold water.

ICE says that detainees are transferred for bed space, for health treatment and, principally, for cost effectiveness. Bed space may be a good argument. There are 4,000 beds in South Texas, and plenty of those lie waiting for people transferred here. But Human Rights Watch could not find a single detainee transferred for medical reasons.

Cost, the principal reason provided, is disputable, Parker added. Does it cost more to keep someone in one area, or pay the cost of a flight from, say, New York to Texas, or Chicago to Hawaii? Parker said she could not find public accounting that would explain the costs saved when a detainee is transferred. But she said there are considerable costs involved in the transfer process.

"At a minimum it costs a plane fare for the detainee and ICE officials, as well as ground transportation and administrative costs, like having them re-examined for medical issues," Parker said. "All those things cost quite a bit."

The Rio Grande Valley’s Pro Bono Asylum Representation Project, or ProBAR, recently celebrated its twentieth anniversary. Meredith Linsky, the director of ProBAR, said there are few practicing immigration attorneys in the area. ProBAR’s attorneys are among this small number.

Though Parker could not establish that the transfers are intended to block detainees from justice, she says ICE is obviously aware of their actions.

"It’s crystal clear that that’s the effect (of transferring detainees)," Parker said. "They know that transfers make getting representation more difficult. Given the widespread nature of this policy, I would be shocked if they were to argue that they don’t know it."

The Inspector General’s report indicates that the impact of transfers is understood. And now that the information is out there, Parker says that just a couple of simple legislative changes could solve the problem.

"If they had a checklist of people who it’s okay to transfer and those who it’s not okay to transfer, that would be a simple solution," Parker said. "Those detainees with local attorneys, witnesses or evidence, shouldn’t be sent far away, but those without ties to this country who have not been here a long time, or who are not seeking asylum, could be sent further."

Above all, Parker says, constructing new ICE owned and operated facilities close to major urban centers like New York and Baltimore would prevent the agency from constantly moving people around.

So far, ICE has agreed with both recommendations set out by the Office of the Inspector General. First, ICE agreed to review the files of each detainee before any transfer. Second, ICE agreed to implement a policy to create procedures for court administrators and officers to communicate about hearing and transfer schedules.

Although ICE has been receptive to this criticism, Human Rights Watch found that internal standards have failed to produce results in the past. Instead, Parker says, Congress must legally bind ICE to these and additional standards.