ALTERNATIVES TO DETENTION

By Norka M. Schell

Law Offices of Norka M. Schell, LLC

Tel. (212)564-1589

Website: www.lawschell.com

The government needs to eliminate mandatory detention except for serious offenders. 

Each year mandatory detention results in the jailing of tens of thousands of people who pose no danger to their communities and are not a flight risk. Feeding this detention system is the mandatory provision of Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), requiring that most people in deportation proceedings, based on their past offenses, no matter how remote in time, are held in custody, even if they are non-violent and the criminal system has determined they are not a risk to the community. Such a system cannot differentiate between a terrorist and a single mother of U.S. children or a green card holder who's lived here his whole life. The respondent remains in custody until completion of the immigration court case, and pending any appeals to the Board of Immigration Appeals and federal circuit courts, which can easily amount to years of detention. 

In the past few months, the Obama Administration has massively escalated its detention of mothers and children who are fleeing violence and persecution. Within weeks, the Department of Homeland Security will open several thousand new detention beds dedicated to detaining families. These mothers and their children, including many toddlers and babies, are asylum seekers, who have suffered domestic violence, sexual assault, gang violence and other atrocities and are protected under international and U.S. asylum and humanitarian law. The U.S. government is also subjecting them to an aggressive and rapid deportation policy that deprives them of meaningful access to protection.

Even though Department of Homeland Security current only permits individuals to participate in alternatives programs if the individual has already demonstrated the they are not a flight risk or danger to the community, the Department of Homeland Security uses restrictive measures such as electronic devices to monitor participants. Electronic monitoring devices are very restrictive: a recent court decision found that electronic bracelets cause the loss of a 'great deal' of an individual's liberty and require confinement in a specific space such as a private dwelling for approximately 12 hours per day. Currently, all Department of Homeland Security's alternatives to detention programs rely heavily on electronic monitoring devices which seriously restrict an individual's freedom of movement - thereby converting the program into an alternative from of custody rather than an alternative to detention.  

Department of Homeland Security's current alternatives to detention programs have not yet taken advantage of the community-based alternative programs run by non-governmental, state or local agencies that utilize less restrictive means to ensure program compliance. Community-based alternatives programs that provide case management services, legal orientation for participants and facilitate access to counsel have been shown to substantially increase program compliance without the extensive use of electronic monitoring. 

Detention deprives individuals of their most fundamental rights to liberty and for many individuals such as the mothers and their children, and for many immigrants and asylum-seekers, this extreme measure is often unnecessary.