This diary is as much about rule of law as it is about immigration. The Bush Administration and their allies in Congress have taken it upon themselves to remove judicial oversight abroad in Guantanamo and in the gulag of secret prisons our nation has established in eastern Europe, Iraq and Afghanistan. While we were sleeping, they have started to do the same thing right here at home. The Department of Homeland Security detains more than 200,000 persons per year. Nobody knows exactly how many people are being detained, where, or under what conditions. And now, Congress is stripping federal circuit court oversight from the detention system right here in the U.S.
Much more below
Despite requests by several non-profit organizations, the Department of Homeland Security has refused for more than two years to release information on the locations of all the facilities they have contracted to hold detainees. They have refused to release information on how many detainees have been granted or refused medical care, despite recent suicides and deaths in detention. They have refused to release information on whether these facilities are inspected to assure that operations are consistent with minimum detention standards. They have refused to institute mandatory immigration detention standards, as requested by the American Bar Association way back in 2001. They have refused to assure that detainees can access phones or faxes in order to call attorneys. In fact, by transferring immigrants from one remote county jail or detention facility to another, they can effectively prevent detainees and attorneys from communicating.
Folks, in the name of "cracking down on illegals" the US is running a gulag right here at home. DHS contracts local county jails across the US and keeps that information secret. There may very well be immigrants being held in a jail near you throughout America - maybe in Hastings, NE or McHenry or Cairo in IL, or York, PA, or Indianapolis, or Colorado Springs. There are immigrants scattered in parish jails throughout Louisiana.
I know that as you read this, you may have an image of undocumented recent economic migrants, or criminals who committed crimes and who are facing deportation as a result. Fair enough - in a majority of cases, these individuals have no relief under the law and they can and will be deported. I personally do not object to application of the immigration laws and deportation of those who are ineligible for relief.
But there is another face to immigration. Many of the people in DHS detention DO have potentially successful legal grounds for remaining in the United States: The father of three US citizen children who never realized he had a deportation order from back in 1991 because the letter never arrived. The Ethiopian asylum seeker with renal bleeding from a beating received in an Ethiopian jail who cannot communicate with jail staff in the US. The woman fleeing domestic violence in Guatemala, with the broken bones to prove it. The Somali woman with a gunshot wound that was missed during her jail "physical". The Iraqi who came here at age one, became a Southern Baptist and speaks no Arabic, and is being deported because he had an ounce and a half of pot on him. These individuals can find themselves isolated in tiny county jails for as long as two years, without access to legal representation, while the wheels of our immigration system slowly turn and the date of their deportation looms closer. They may not have access to an interpreter if they get sick, they may not have access to functioning phones or may have to pay $4 a minute to use them, they only have the right to an attorney if they can afford one - and if an attorney can even find them.
The potential for error and misapplication of the law is huge. People with immigration relief are deported everyday.
But, hey, they are "illegals" so why should we worry about the law? Because we need to be cautious when we are going through a period in our nation's history where the pendulum has swung away from individual rights and toward rigid and selective application of the law. Just look at popular TV these days - it's all CSI and Law and Order. Perry Mason wouldn't stand a chance in the ratings.
We are scared of "illegals", we are scared of criminals, and most of all, we are scared of terrorists. So we are more than willing to abandon our values, our decency and our nation's heritage in order to get tough on them. Immigrants are natural targets, because nobody really cares and everyone has the image of a low-wage worker stealing American jobs and committing crimes. We focus on that, alone. Look at the paltry number of "recommends" immigration related diaries receive, even here where we should know better. (Immigration and the environment are the two areas on DailyKos that receive less attention than they deserve!)
An organization in Chicago recently filed a lawsuit against the Department of Homeland Security to get more information on America's gulag. Here's some text from a press release:
CHICAGO - March 15, 2006 - Heartland Alliance's Midwest Human & Human Rights Center (MIHRC) is today filing a federal lawsuit against the U.S. Department of Homeland Security (DHS) to obtain public information about detained immigrants and asylum seekers. MIHRC resorted to suing DHS after the Government failed repeatedly to respond to Freedom of Information Act requests filed in 2004 for public information on detention standards compliance, medical policies, and the names of detention facilities under contract with DHS.
"The Department of Homeland Security must end its policy of covert detention," said Mary Meg McCarthy, director of MIHRC. "As the Senate considers expanding immigration detention to give even more power to DHS, such as allowing it to detain people without any review whatsoever, there is an urgent need to ensure that basic rights, such as medical care and access to an attorney, are guaranteed for all detainees."
Can you find out if immigrants are being detained in your community? Will DHS even tell you? Are they being held under internationally recognized minimum standards? Can they get access to lawyers if they have a valid case?
Of course the Bush Administration has its friends in Congress who are determined to make sure that the Constitution does not apply to immigrants. Detention secrecy is bad enough, but now the Bush Administration and people like James Sensenbrenner, Alren Specter and Bill Frist want to make sure that immigrants are insulated from the federal court system.
Judicial oversight guarantees a full and fair process that can literally mean life or death to asylum applicants. Conservative Judge Richard Posner on the Seventh Circuit Court of Appeals recently noted "the tension between judicial and administrative adjudication is not due to judicial hostility to the nation's immigration policies... It is due to the fact that the adjudication of these cases... has fallen below the minimum standard of justice." Benslimane v. Gonzales, 430 F. 3rd 828 (7th Cir. 2005)
So what do you do if you don't like the judge? Change the venue! Strip jurisdiction from thoughtful (even if Republican and Conservative) judges like Richard Posner, and make sure that your evil deeds are hidden not just from the public, but from the federal judiciary.
That's exactly what they are doing - TODAY in the Senate - which is expected to vote on Senate Judiciary Committee Chairman Arlen Specter's Comprehensive Immigration Reform Act of 2006 (the "Chairman's Mark").
This is a truly egregious piece of legislation. The Chairman's Mark does not address the root problems in our broken immigration system and as such will neither fix that system nor enhance our national security. Rather, the Chairman's Mark will erode basic due process and human rights protections; weaken the balance of power; and push more immigrants underground rather than bringing them out of the shadows and into an orderly and efficient system.
The Chairman's Mark would severely limit access to judicial review for immigrants and asylum seekers and would restrict their ability to obtain pro bono representation.
Section 701 would strip jurisdiction over immigration cases from the federal circuit courts of appeal (which have considerable experience in reviewing immigration matters) and place exclusive jurisdiction in habeas cases in the United States Court of Appeals for the Federal Circuit. The Federal Circuit is a specialized court that reviews patent, copyright, and tax cases and has no experience handling immigration cases and the constitutional, habeas corpus, or international human rights law they reference. That means that federal judges that usually deal with patent and tax disputes will be required to decide whether or not to deport an asylum seeker or a woman fleeing domestic violence, with potentially fatal consequences. The Administration and the GOP want this provision in the law, because our federal district court justices - be they Republicans or Democrats - are increasingly refusing to permit indefinite detention, immigrant detainee abuse, sloppy legal work and gross miscarriages of justice. "If you don't like the judge, change the venue".
Section 707 would allow default denials and dismissals due to the inaction of a judge, meaning that a person can be deported simply because some clerk misplaced the file. We all know what that means - obstruction and bad faith on the part of anyone in the system can result in denial of justice.
Section 705 would allow prior deportation orders to be reinstated without any proceedings before an immigration judge, without any review of the underlying legality of the removal order and without any exception for individuals seeking protection from persecution. This means that if the government erroneously issued a deportation order in the past, the order can be reinstated and the individual can be deported even if she faces a real risk of being killed in her homeland. And there's not a damn thing anyone can do about it.
Sections 204, 401, and 601 would strip court review of certain agency decisions to deny citizenship, immigration benefits or relief from removal.
Current immigration laws provide protection for asylum seekers, unaccompanied immigrant children, immigrant victims of human trafficking and crimes such as domestic violence. These individuals are sometimes forced to enter the country without passports and valid visas for reasons beyond their control. For example, asylum seekers are fleeing for their lives and are often not able to obtain passports from the government that was persecuting them. Likewise, victims of human trafficking, and battered immigrant women--who many times are forced by their traffickers and abusers to enter the country--might be unable to enter lawfully or may lose lawful status while present in the United States as a result of abuse. In other cases, immigrants--especially immigrant boys and girls--come to the United States seeking protection from gang participation and persecution.
The Chairman's Mark would criminalize immigrant men, women, and children for using false documents, being unlawfully present, or having alleged gang involvement, without requirement for proof.
Section 208 would define as an "aggravated felony" the use of a false passport or immigration document, assistance to someone seeking to obtain false documents, or false statements in a passport application.
Section 203, which would remove administrative discretion to grant a waiver to asylum seekers and refugees who have been convicted of this broadened definition of "aggravated felony."
Again, for 200 years US law has recognized the right to seek asylum and protection from persecution. Buying papers to escape Nazi Germany was not a crime in 1939; it should not be a crime now. The law needs flexibility in these situations, not a reaction in fear to terrorism, and a willingness to charge victims with felonies and deport them to their deaths. You think this is hyperbole? Read a little bit about the recent history of Congo or Sierra Leone and then tell me that no Congolese or Sierra Leonean should be granted refuge. If an economic migrant buys a fake passport, well take the passport and deport the migrant. If a terrorist buys a fake document, take the passport and charge the terrorist with a crime. If an asylum seeker buys a fake document, hear his or her story, adjudicate it fairly, and if the person is a legitimate refugee, welcome them to this country as we have for centuries. WTF is wrong with us these days?
It is a fundamental principle of our democracy that an individual cannot be deprived of his or her liberty indefinitely and without due process. The ability of an immigrant, generally with the assistance of legal counsel, to file a habeas petition after six months of post-order detention is an important check on the power of the Department of Homeland Security's Immigration & Customs Enforcement (ICE). Further, administrative review of individuals who cannot be promptly removed to their home countries should be balanced between the Immigration Court and ICE.
The Chairman's Mark would:
Require that an immigrant "exhaust administrative remedies" before filing a habeas action, without regard to how many months or years the agency takes to make a decision (Section 202);
Fail to require DHS to make any decisions within a specified time period (Section 202);
Undermine the Supreme Court's decision in Clark v. Martinez, thus permitting the indefinite detention of people who were "paroled" into the United States (as opposed to those who made a lawful or unlawful "entry") (Section 202).
Only by ensuring that the weakest among us are treated with respect, can we make our country stronger and more secure. This is not a difficult lesson. This does not require opening our borders, destroying our economy and overburdening public services. Let's return the immigration debate - and the debate on our Constitution itself - to a debate on values and not fears.
Outraged? You should be. Call your senator and tell them to oppose Sen Specter's Chairman's Mark and to preserve due process for immigrants in detention.
Most of all, as we contribute to a Democratic strategy in 2006, let's remember that mindless immigrant-bashing should not be part of it. There are reasonable, sane alternatives that protect our economy while preserving our values and our Constitution. Maybe some commenters want to weigh in on a humane immigration policy? What is the role of the judiciary? Does the Constitution apply to people, or just to citizens? Is there a role for international law within the United States, and should we maintain international standards when dealing with refugees and asylum seekers?
Have at it!