By: Christine Caldera
Data was gathered as part of a Qualitative Methods course in Spring of 2018 at the Josef Korbel School of International Studies supervised by Dr. Rebecca Galemba and in collaboration with Casa de Paz. For the project with Casa de Paz, data was gathered by graduate students Christine Caldera, Dian Agustino, Rezwan Masud, Aliaksei Kharytaniuk, Sarah Feigelson, and Alanna Wendt.
An Examination of the U.S. Private Immigration Detention System
“When I saw the American flag, I forgot all my sufferings and miseries. I felt like I was one step away from embracing freedom.” (former detainee from the Aurora ICE Processing Center) However, the U.S. leads the world in the immigration industrial complex with its extensive private immigration detention system (Small, Rkashaum and Shah, 2016) that has become increasingly lucrative at the expense of human lives. In contrast to a decade ago, the U.S. federal government manages approximately ten percent of all detention centers with the remaining 90 percent of facilities contracted out to private prison corporations (American Friends Service Committee, n.d.). Within the private prison industry, CoreCivic, The GEO Group, Inc., and Management and Training Corporation control 62 percent of the industry’s $5.3 billion revenue. Furthermore, GEO and CoreCivic run eight of the ten largest immigrant detention centers, which constitutes 72 percent of detained immigrants in ICE custody (Garfinkel, 2017). During fiscal year (FY) 2016, U.S. Immigration and Customs Enforcement (ICE) identified 353,000 immigrants for detention or removal who were detained at one of the 200 immigration detention facilities, which demonstrated an increase of 209,000 individuals from 2001 (Luan, 2018).
This brief aims to shed light on the systematic denial and violation of the right to due process as a result of the immigration industrial complex. It examines the interconnections between relevant immigration laws, the current immigration detention system, and the anti-immigrant rhetoric that sustains them. Then, the brief explores how the immigration industrial complex undermines and violates the rights of immigrant detainees, principally the right to due process, as evident in the literature and information gained from interviews for this research project.
Our research team worked with Casa de Paz, an Aurora-based nonprofit organization that provides transportation services and hospitality to recently released immigrants or their families, to better understand the reality of immigration detention in the Aurora ICE Processing Center, which is run by the GEO group. We collaborated, and conducted research with, Casa de Paz through a Qualitative Methods Course at the Josef Korbel School of International Studies at the University of Denver in the spring quarter of 2018. We engaged in participant observation, volunteered at Casa de Paz, attended community events around immigration, and conducted interviews with 5 legal professionals and academics, 5 Casa de Paz volunteers, and 3 former detainees from the GEO detention facility while drawing upon background literature and news sources.
A Casa de Paz volunteer stated, “many people do not know that “ICE Processing Center” is actually a detention center. There is lack of knowledge on this issue. That is why nobody wants to take responsibilities. If some people know, they know that ICE is keeping us safe by keeping bad people, criminals away from us.” This remark touches on the aim of our research, as we aimed to examine the plight of immigrant detainees in the GEO detention facility in contrast to the rhetoric emanating from GEO’s official documents and website. This brief aims to shed light on the systematic denial and violation of the right to due process as a result of the immigration industrial complex. Ultimately, current U.S. immigration policies commodify, criminalize, and dehumanize immigrant communities rather than respect the inherent rights of all human persons no matter their legal status, country of origin, gender, race, ethnicity, or age.
The Private Prison Industrial Complex: The Seminal History of the Industry
The U.S. commitment to immigrant populations has severely diminished in the past three decades, which can be attributed to contemporary immigration policymaking. First, the 1986 Immigration Reform and Control Act (IRCA) not only reinforced the discretion of the Immigration and Naturalization Service (INS) to determine eligibility for deportation, but also allocated resources for detention facilities and renewed the rhetoric of a “criminal alien.” (Rosas, 2016) The ethno-nationalist sentiments and climate of fear towards immigrants that fueled IRCA also influenced the drafting and passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Both of these measures expanded the grounds for mandatory detention for aggravated felonies and required detention for several groups of noncitizens. (Rosas, 2016) One policymaker we interviewed identified 1996 as a turning point for immigration detention because the legislation established the policies, structures, and procedures for the criminalization of immigrants and immigration detention to take root. Gilberto Rosas (2016: 6) asserts that the AEDPA laid the foundation for the USA Patriot Act of 2001, which expanded the grounds for indefinite detention of immigrants. A lawyer we interviewed asserted, “most people who have crossed the border without papers or documents have not committed crime, so they shouldn’t be treated as criminals…facilities should not be run as a prison.” Yet, U.S. legislation does not reflect this sentiment, as the grounds for detention continue to expand and the incarceration and criminalization of noncitizens aims to serve as a deterrent for future migration. This ideological shift in U.S. politics complimented the rise in the private prison industry with its role in immigration detention.
Since the privatization of the prison industry in the 1980s, corporations also became interested in privatizing immigration detention. The private prison industry began in 1983, when U.S. legislation shifted to prioritize mass incarceration and punishment. In 1984 and 1987, the two largest private prison corporations, formerly known as Corrections Corporation of America (now CoreCivic) and Wackenhut Corrections Corporation (now GEO), both received contracts from the INS for federal immigration detention centers (Golash-Boza, 2009). The revenue earned by these corporations are linked to the movement for privatization under the Reagan presidency and the subsequent imprisonment binge that accompanied the legislation expanding mass incarceration and detention.
Evidently, anti-immigrant and pro-detention legislation has complimented the revenue and lobbying expenses from the private prison industry throughout its history. Federal government officials and the private prison industry are deeply entangled. For example, former ICE Deputy Director, Daniel Ragsdale, now serves as the Executive Vice President for Contract Compliance for GEO. As indicated in the graph, GEO and CoreCivic are also financially entangled within U.S. politics through lobbying efforts on DHS appropriations and immigration issues. In regard to corporate relationships with the U.S. federal government under President Trump, one academic stated, “he has his hands in the pockets of a lot of corporations who benefit [from immigration detention]. If not GEO or CCA [now rebranded as CoreCivic], it’s all the other businesses who operate the different kinds of services that belong to the private prison industry.”
Immigration legislation has established the necessary conditions to support an immigration industrial complex. Drawing upon characteristics of the military industrial complex and the prison industrial complex, Tanya Golash-Boza (2009) defines the immigration industrial complex as, “the confluence of public and private sector interests in the criminalization of undocumented migration, immigration law enforcement, and the promotion of ‘anti-illegal’ rhetoric.” (2009: 295) Golash-Boza (2009) recognizes the immigration industrial complex as a “self-perpetuating machine” due in part to three interlocking principal characteristics: a rhetoric of fear, the fusion of powerful, elite public and private interests, and narratives of other-ization. Given the convergence of national security with federal immigration law and enforcement since immigration enforcement was incorporated under the Department of Homeland Security in 2003, immigrant populations became perceived as threats to U.S national security and public safety. Thus, “the containment of the few therefore becomes a prerequisite for the freedoms of the many” (Inda and Dowling, 2013: 8).
Political officials and private prison corporations capitalize on the socially constructed narrative emphasizing the criminality and public fear of immigrants to justify the continued need to indefinitely detain immigrants to “protect” U.S. citizens and insulate capital. These sentiments were shared by an academic who asserted in an interview that, “the system is fueled by [a] long standing anti-immigrant stance through legislation that is driving politicians to fuel xenophobic rhetoric to incite the public and foster [a] relationship between politicians and corporate friends.” Private prison companies are a powerful nonstate actor, afforded a great degree of discretion by U.S. federal institutions, and profit from, while reinforcing, the notion that immigrants are criminals or dangerous who do not deserve the same rights as any other human being.
In addition to the rhetoric, the introduction of criminal law to adjudicate immigration related matters, which fall under civil law, has shifted the landscape of immigrant detention and challenged the inherent right to due process. The right to due process can be violated in detention, but also outside of detention due in part to the U.S. approach of governing immigration through criminal avenues such as prosecution and incarceration. Enhanced border policing, increased interior policing conducted by ICE in cooperation with local and state police forces, coupled with the expansion of the legal definition of what constitutes “criminal alien” activity under immigration law, has encroached on the right of due process for non-detained individuals and fomented a high degree of insecurity and instability for immigrant communities. Jonathan Xavier Inda and Julie Dowling (2009: 14) assert,
“the delegation of immigrant confinement to organizations whose main purpose is to generate profits inevitably produces pressure to increase detentions…Immigrant bodies have thus become valuable commodities whose worth lies in being placed and kept behind bars.”
The priorities of the immigration industrial complex are to generate profits, maintain and earn new detention center contracts with ICE, and lobby for the passage of anti-immigrant and punitive legislation in order to render immigrants to a mere business transaction. Moreover, the system intends to deprive immigrant communities of their power and control to meaningfully participate in society by segregating this population from society (Inda and Dowling, 2009). Thus, a system that depends upon the commodification or incapacitation of immigrant communities cannot respect the right to due process when the system intentionally works to profit from the continued detention of immigrants.
Due Process for Whom?
The profitability and influence of private prison corporations further erodes the due process afforded to immigrant populations. David Manuel Hernández (2008: 151) writes that, “the trend in detention policy is to advance a variety of “undue processes” against noncitizens and detainees by depriving them of their due procedural rights.” Although the immigration detention system is one facet of the U.S. immigration system, the private prison industry and its role in immigration detention reflects how the confluence of private and public interests has created and perpetuated an intentional, well-designed, and well-funded system to control and exclude (Gomberg-Muñoz, 2016, Golash-Boza, 2009). The current U.S. legal system is undermined and hollowed out by the current state of exception concerning what is legal and illegal, moral and ethical, in light of amorphous threats due to the conflation of immigrants with national security threats.
International human rights law and U.S. law prohibit arbitrary detention and protect fundamental due process rights. However, recent U.S. case law demonstrates the contention between the limits on constitutional protections afforded to noncitizens by U.S. law. In Jennings v. Rodriguez, the majority opinion for the U.S. Supreme Court held in February 2018 that U.S. federal law does not afford detained individuals the right to frequent bond hearings throughout the duration of detention. Therefore, the majority decision held that the government has the discretion to decide that an asylum seeker or immigrant could be incarcerated for years without a bond hearing. A Casa de Paz volunteer told our research team, “the main thing I have learned is that they have zero rights.” A former detainee shared, “the two and half years that I spent inside [the] detention center changed my perception about system of this country. There is no humanity. They talk about human rights, but the reality is totally opposite.” Based upon the current trajectory of U.S. immigration legislation, policy statements and executive orders from the Trump administration, and the rise of the private prison industry in immigration detention, human rights are not protections afforded to all in the U.S.
The concept of “undue process” translated to our research findings, as information gathered from interviews shed light on lengthy detention at the GEO detention facility and on the difficulties of accessing legal representation while detained. One lawyer stated, “after [the client] learned that it would take 2 years and he’d be in detention for 2 more years… He offered to take deportation because he thought it’d be better to be deported back home than [continue] to be in detention.” The lawyer does not know the fate of this individual after being deported to their country of origin. A Casa de Paz volunteer picked up a 19-year-old individual from GEO who, “was detained for three years at GEO [at age 16], which was a gross violation of law, as a minor is not supposed to share detention with adults.” When speaking of the immigration detention system, a policymaker stated,
“I’m sure it could get worse. There are always ways it can get worse. For example, there was a man, who is a citizen, that was detained for a year while he was trying to prove his citizenship. A detained citizen!”
Moreover, interviews highlighted the difficulty in accessing legal representation and services due to expense or language barriers. One lawyer stated that in attempts to lower costs for detainees, they try to conduct as many appointments over the phone to reduce the number of billable hours since the lawyer does not have to travel to the detention facility. One former detainee explained, “I had to give $500 per visit to the lawyer when I accessed one. I had to pay him 14 times.” Although the lawyers we interviewed discussed pro bono legal representation, the pro bono hours cannot provide legal representation to all detained immigrants; thus, many lack legal representation due in part to the expense.
Additionally, reported conditions in the GEO detention center do not meet the appropriate international standards for detention. One lawyer stated,
“You can see the psychological damage that people get in detention. I’ve heard of reports from clients that the food is not great, there are only a few options for religious exceptions…people [lack access to] medical care they need.”
Additional interviews also stressed the inadequate quality of food, psychological damage, lack of access to quality medical care, as well as, highlighted the egregious suffering caused from inadequate sleeping conditions, and feelings of surveillance while in detention. Sarah Jackson, the founder of Casa de Paz summarized these findings, “GEO is here to make money. This company is all about the dollar. They have this opportunity to make billions. If their goal is to make money, they don’t give enough for medical care because it costs money”, which translates to the other services as well. In conclusion, the private prison industry, U.S. immigration law, the dehumanizing and racialized rhetoric, and the current climate of fear and ethno-nationalism upend the universality of rights, the rule of law, and democratic values in the U.S., such as the right to due process.
Unbeknownst to some, U.S. taxpayers fund private prison corporations by paying more than $2 billion each year to maintain the detention system (Small, Rkasnuam, and Shah, 2016). One of the most common recommendations that arose during the interviews was the need to raise awareness about immigration detention and U.S. taxpayer roles within the system. One immigrant rights activist stated during an interview,
“We are really trying to work with credibility and emotions to get to people who may not be swayed by logic, ideas of democracy, or what governments should or should not do. But once you reach into the emotions and the ideas of family separation and ideas of abuse, you reach to that humanity side instead of the logic side”.
It is imperative to shift the discourse surrounding immigration detention in the U.S. by challenging the climate of fear, continuing to highlight the abuses occurring within private detention facilities, and rehumanizing immigrants. With education and an increased awareness, U.S. taxpayers ought to demand accountability from its democratic institutions and political leaders by calling for an end to the immigration industrial complex.
American Friends Service Committee Investigate. (n.d.). CoreCivic, Inc. http://investigate.afsc.org/company/corecivic-inc
Center for Constitutional Rights. (2017). Detention Watch Network (DWN) v. Immigration Customs and Enforcement (ICE) and Department of Homeland Security (DHS)https://ccrjustice.org/home/what-we-do/our-cases/detention-watch-network-dwn-v immigration-customs-and-enforcement-ice-and
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