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Can immigrant rights advocates get Biden to end for-profit ICE detention?

Most immigrant detainees don't have criminal convictions, while the ICE budget for detentions soared. "It's such a cruel system," one advocate said.
Image: Exterior of the Central Valley Modified Community Correctional Facility
The Central Valley Modified Community Correctional Facility in McFarland, Calif., on March 28, 2019.Carlos Avila Gonzalez / San Francisco Chronicle via Getty Images file

Immigrants rights advocates are pressing President Joe Biden to end federal contracts with private companies for immigration detention, saying it has allowed a few companies to profit while the costs of detaining immigrants — most of whom have no criminal record — have risen.

Eliminating such contracts is part of a larger push to reform the nation's sprawling immigration detention system and comes as the pandemic has reduced the number of detainees.

“They have a lot of room here. We think it is a historic opportunity to dismantle this system of massive incarceration,” said Naureen Shah, the American Civil Liberties Union's senior advocacy and policy counsel.

Biden recently signed an executive order phasing out the Justice Department’s use of private federal prisons. During the presidential campaign, his position was that private companies should not be used for immigration detention, but his executive order did not cover detention centers. Shah said she was optimistic that will happen.

By last January, 81 percent of people in ICE custody were held in centers owned or managed by private prison corporations, according to a report by the ACLU, Human Rights Watch and the National Immigrant Justice Center.

In addition, private prison companies housed 91 percent of all people held in detention centers that opened under the Trump administration, the report said.

Beyond the numbers of people under private care, immigrants are not entitled to lawyers and can face obstacles contacting them while detained. The agency has been criticized for inspection and oversight issues and abuses have been uncovered.

Most immigrant detainees are Latino and Black, who are targeted for detention at higher rates than white immigrants, advocates point out, with some research supporting these claims.

ICE spent $1.8 billion on detention in 2009, USA Today reported, while the agency's fiscal year 2020 budget for detention was $3.11 billion, according to DHS data provided by American Immigration Council.

In fiscal year 2020, the detainee population totaled 182,869, Department of Homeland Security data shows. The numbers fell as the pandemic led to fewer arrests and forced the release of many immigrants. The Transactional Records Access Clearinghouse (TRAC) reported Thursday that 14,195 people remained in detention as of Jan. 22.

Immigrants — with and without legal permission to be in the U.S., and even sometimes U.S. citizens — are held in a large, complex system of local jails and immigration detention centers that make up the detention system.

ICE contracts with private companies to run many of the facilities or with local governments that, in turn, subcontract to other private companies.

A small portion of immigrants in custody of the U.S. Marshals Service also can be held in the privately run federal prisons that could be affected by Biden's executive order.

According to TRAC, every state and U.S. territory has at least one ICE detention facility, with varying amounts of use.

More reasons for detention, longer private contracts

Groups are concerned about the Biden administration taking the same approach to immigration detention centers as it has with prisons, not renewing contracts rather than ending them outright.

Phasing out of immigration contracts held by private companies could leave companies running ICE detention facilities for years to come, said Silky Shah, executive director of Detention Watch Network.

“Trump did a lot to move forward with 10-year contracts in the last year,” Shah said.

Ending federal private contracts for immigration detention would be a critical step toward overhauling immigration enforcement overall, advocates say.

A group of lawmakers led by Rep. Jesús “Chuy” García, D-Ill., has re-introduced the New Way Forward Act, which includes an end to mandatory immigration detention along with other provisions.

Mandatory detention laws, begun under the Clinton administration, force the automatic detention of immigrants convicted of an expanded list of crimes or facing removal hearings, while denying them bond hearings. TRAC reported that in March 2020, 6 in 10 detainees, or 61.2 percent, had no conviction, not even for minor petty offenses.

The list of crimes that require automatic detention has grown over the years and been a principal cause for the expansion of immigration detention, according to the Detention Watch Network. Legal residents, asylum-seekers and the undocumented can be subject to mandatory detention.

In a memo issued Jan. 20, acting Department of Homeland Security Secretary David Pekoske issued a memo calling for a review of immigration enforcement and removal policies and priorities.

It also mentions alternatives to detention, said Layla Razavi, deputy executive director at Freedom for Immigrants, whose mission is to abolish immigration detention. The memo included a 100-day pause on deportations that has since been blocked in a lawsuit brought by Texas officials.

Cheaper, community-based solutions

Razavi and other advocates said the alternatives to immigration detention should be community-based, family-oriented strategies that go beyond ankle-monitor systems, which private companies running detention centers also have invested in and are managing.

The American Immigration Council, in a report issued Thursday, found that 83 percent of nondetained immigrants with completed or pending removal cases from 2008 to 2018 attended all of their court hearings. For those with attorneys, the rate was 96 percent.

The attendance rate “reveals the extent to which immigration detention is no longer necessary, if it ever was," Aaron Reichlin-Melnick, policy counsel at the council, said.

“Today’s report shines a light on ways the Biden administration should significantly reduce the use of detention going forward,” Reichlin-Melnick said, with the goal of ending it altogether.

“It’s such a cruel system," Razavi said, "and has resulted in so many deaths, illnesses and forms of abuse."

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