JUNTOS (C J)
Creciendo Juntos (CJ) Workshop:
What Will Happen Now?
Understanding Immigration Detention
October 13, 2011
10:00 – 11:30
Welcome: Tim Freilich, Legal Aid Justice Center (LAJC) and Creciendo Juntos Executive Committee
Speaker: Allison Kent, Attorney, Immigrant Advocacy Program, LAJC
Allison is a graduate of Harvard University and the University of Michigan Law School. Prior to joining
Legal Aid Justice Center’s Falls Church office in the summer of 2011, she practiced immigration law and
conducted a weekly legal orientation program for immigration detainees while an attorney with the Florida
Immigrant Advocacy Center. She has also worked in Uganda with refugees on a Bates Fellowship.
Allison’s legal work with immigrants is informed by her experience working on Latin American human
rights issues with the Unitarian Universalist Service Committee and on a Fulbright fellowship in Bolivia.
You can reach her at email@example.com.
Overview of the Immigration Detention System in the United States:
Network of about 300 facilities around county that hold detainees (county, city jails, sometimes
mixed in with general criminal population)
o 363,000 immigration detainees in US – Big number
o Any given day 33,000 people in the system
In Virginia locally:
o Farmville (about 1 ½ hours from Charlottesville)
About 420 Capacity 500 plus
Both men and women (female pop much smaller)
o Rappahannock (county jail) – immigration detainee numbers vary from 100-200, men
o Hampton Roads—currently about 300 immigration detainees, only 30 or so are
Immigration detention costs US $2 billion a year and has expanded
exponentially in recent years.
Detention capacity (# of beds) has tripled in last 15 years.
o FY2012 costs $122/day to host a detainee on average.
o There are ALTERNATIVE programs – Cost $12/day. 93% success rate.
Advocates pushing to expand these programs, numbers are very small
Who is responsible for this system?
Detention is under the Department of Homeland Security and under that through the Immigration
and Customs Enforcement (ICE).
ICE is responsible for those jails. Most are not run by the Federal Government, but rather ICE
leases bed space from county jails, etc.
Creates incentive to fill those beds because that county jail (run by a contract security/prison
management companies) gets income.
ICE makes decision of WHO gets detained and put in immigration removal, or deportation,
proceedings (of about 11 million undocumented in US; plus immigrants who are not citizens).
Myth: Everyone picked up has committed a crime.
Fact: Half of all the people detained in the US have no criminal history
System FEELS penal/criminal in nature, although actually CIVIL.
Being in violation of immigration regulations is not a crime, it is a civil violation.
Immigration detention is not criminal, but feels like a penal facility.
Often mixed with criminals in same facilities.
Detainees in most facilities wear jumpsuits, have limited or no contact visits with family in some
facilities, “visits” are through closed-circuit systems), some facilities have no outdoor recreation,
Some discussion of making system feel more civil, but even these plans in the works for
developing more “civil” detention facilities would impact only 14% of total # of beds.
Myth: Everyone in immigration custody is in the US illegally.
Fact: Not the case.
Might be a green card violation. A lot of permanent residents in immigration detention (for
example a permanent resident who has had a criminal infraction, so need to apply for a
waiver to keep residency.)
Some are people who crossed border illegally, others overstayed tourist or student or
work visa for example.
Example: Detainee entered the US as a baby (7 months old), was a permanent resident, and was
detained at age 42 for 2 years in a detention center.
Example: Visited Farmville yesterday and met a 27 year-old female detainee who has been in the US
since she was 2 years old and graduated high school here. All her other siblings are legal US citizens,
born here. Brother just deployed by military to Iraq and was having difficulty reaching him as a financial
resource to help her pay for bond. . No criminal history. Involved in a traffic accident in NoVA. With no ID,
as in many cases, she was brought back to the police station, fingerprints were run, etc. Now she has
been sitting in detention for 4 months (since June 2011). .
Large proportion of stats with mental illness or mental disability (US prison system about 25%). For
immigration system, stats on this aren’t well kept. Those with mental illness and without family support
system more likely to have criminal history for minor infractions. There are thousands of people with
mental illness or disability detained by US immigration officials each year. Their mental disabilities make
it more difficult when many of them have to represent themselves in court. In addition, many people with
mental illness do not get proper medical treatment while in detention and/or some decompensate when
How detaining process happens
Entering/returning to land border, or airport
After being picked up for a criminal charge, such as trespassing, for example
Federal Immigration Enforcement Program: Secure Communities
Every time a person is booked in jail (might not even file charges ultimately) fingerprints are run matching
with a federal database. If a hit comes back , the system notifies federal immigration authorizes who can
come and pick them up to take the person into immigration detention.
Impact: Causes people to fear the police. E.g. domestic violence situation, may not even bring charges,
sometimes police may book both man and woman while deciding what to do and this can put up red
flags. Results in fear for calling for help, or to call the police. As a result, may be more hit & runs because
afraid to stay, afraid to report domestic violence, etc.
Racial Profiling: In some places – immigration enforcement patterns demonstrate racial profiling (e.g. in
Florida gone through data in certain counties much higher % of stopping those with Hispanic surnames).
Can even question someone in vehicle not driving. (Do not have to respond….know your rights).
Recent Policy at Federal Level Re Prosecutorial Discretion
Secretary Napolitano announced new Federal Policy on August 18, 2011. Prosecutorial Discretion is the
power that every prosecutor has on whether or not to initiate a case. Policy is to use more discretion
about who we are going to detain and who we are going to deport.
Essentially the new Federal policy states – We are going to exercise more Prosecutorial Discretion for
certain populations in the US who have committed a civil immigration violation, such as a person who is
here undocumented. The types of factors the government will look at include:,
Have been here many years with US citizen family members
Women who are nursing or pregnant
Have mental or physical disabilities or serious health issues
Minors and the elderly
Individuals who have been present since childhood
Victims of domestic violence or other serious crimes
Long-time permanent residents
300,000: number of open removal, or deportation, cases in the system, the policy states they will do a
case-by-case review using discretion to reduce case load. These are all the pending immigration court
cases, not just those portion who are detained. This policy announcement is NOT amnesty. No status will
be given, no new process to get a work permit, or permanent residency as a result. Announcement
just states that immigration officials will work harder to prioritize resources, such as
going after people with criminal convictions. Unfortunately in practice, not yet seeing this
discretion being used yet. Still deporting people that you would think would fall into that category.
This links back to the HIGH costs and commercial/political incentives to have high detention rates.
Lack of legal representation challenge:
About 80% in immigration detention nation-wide, do not have legal representation.
Because a civil violation, no right to a lawyer paid for by government.
Cost for a lawyer is the responsibility of the detainee. Detainee can end up languishing there, now
without job, family may just be trying to make ends meet. May have to represent themselves.
Even organizations that provide free immigration services, vast majority don’t take detainee
Detention centers are very far away from free legal services making it very logistically difficult to
get pro bono services.
Research shows: 5 times more likely to win your case if you have an attorney.
Impact/Perspective of the Detainee:
Entire experience can be overwhelming, intimidating, confusing, complex for the detainee.
Often detainee language skills in English are limited, may be illiterate, Spanish may be their 2
language. Often detainee has to represent themselves, sometimes presenting to a judge over
Most detainees will have a right to see an immigrant judge, but now in Farmville there is currently
a 3 week wait even before you see the judge for the first time and can ask for bond.
Not everyone who is detained will get to see an immigration judge. For example, if you miss a
court date, maybe didn’t get the notice due to a move. In that case, automatically ordered in
absentia to be deported and you won’t see a judge when you are detained (unless a request to
reopen case is made and granted, which is difficult especially w/out legal representation).
Initial bond decision a key point:
Minimum immigration bond is $1,500 but no maximum. Here in VA often can be higher ($5k-
Can be very challenging to pull financial resources together, in addition to cost of legal
representation. Even if strong legal case to win.
A lot of fraudulent preying on low-income immigrants in this situation – unscrupulous attorneys or
“notarios” (who have a different role like a lawyer in many Latin American countries, mislead
people that they can provide the same service here).
With this population, little accountability addressing these issues as people who are harmed by a
unscrupulous lawyer or notario often are deported once their case is mis-handled.
Focusing on social service provider lens.
What can families do when caught in these types of situations? Some steps can be taken to prepare:
Always make sure people have a valid passport or travel document from their country of origin.
Always make sure US citizen children apply to receive their US passport. Need both parents to
apply for child’s passport (can’t do that if one parent is in detention without the parent who is
detained or for another reason unavailable signing a special State Department form).
Talk about guardianship decisions in advance: Who can be responsible for caretaking IN THE
EVENT parent is detained? Simple document can be prepared in advance to address this
situation. Person you assign needs to have their own proper documents. A Power of Attorney can
be put in place to prepare for this situation.
Example Scenario: Caught in workplace raid or routine traffic stop. Situation could result in hearing that
could terminate parental rights if detained. What if child has medical emergency? More likely for guardian
or parent to lose parental rights if undocumented.
Example Scenario: If parent is being deported and family makes decision to return to home country,
without passport for child, could be separated.
MAKE SURE YOU HAVE A PASSPORT FOR YOURSELF. Legal identification is needed
regardless of whether you have US citizenship or not. Make sure you have a passport from your
country of origin.
For a US-born child perhaps whose parents (one or both) are undocumented. – Can go to US
Post Office to apply. Child’s birth certificate is needed. Both parents need to sign (though there is
a form if one parent is out of country or detained and unavailable)
For an undocumented child: Again MAKE SURE YOU HAVE A PASSPORT FOR THEM.
CAIR Coalition does provide “Know Your Rights” workshops and other pro se services at the 3 facilities in
Virginia through the Legal Orientation Program The organization takes on some detained cases for free,
and can refer some other detained cases to pro bono attorneys usually in the DC metro area.
Follow-up for additional discussions, resource development:
Benefits of having a Power of Attorney document in place for guardianship of children or other
WHAT IF scenarios if either undocumented parent is detained.
Follow-up with LAJC (Allison, Phil) for more guidance, maybe workshop to train providers,
template for various conditions.
Comments by guest, Jim Hingeley, Public Defender for City of Charlottesville
About getting caught up in the system, can a public defender help? There isn’t anything we
can do. But need to make the distinction – some get caught up because a passenger in auto
accident and asked for ID. We never see anyone like that who doesn’t have a charge pending.
We don’t have connection to these type of situations.
To get a court-appointed criminal defense attorney: Case first has to have formal charges in
place and the person charged has to go in front of judge and has to determine your financial
eligibility takes time. Not list “on TV” that at time of arrest, given Miranda rights and you can
receive legal representation immediately.
We can only help someone when the judge gives permission to do that – by law..