American's Troubled-and Troubling-Policies Toward Immigrants:

A Review of Michael Welch's Detained


Friday, March 7, 2003

Michael Welch, Detained: Immigration Laws and the Expanding I.N.S. Jail Complex (Temple University Press, 2003)

Ironically, for a nation of immigrants, the United States has evolved a decidedly anti-immigrant and anti-immigration policy - not just after September 11, but beginning much earlier.

Most of the relevant legislation and regulation predated the events of September 11. But September 11 has led to additional restrictions on immigrants. Accordingly, Welch has added an epilogue to discuss the ugly--but, in part, understandable--turn immigration polices have taken since then.

The Pre-September 11 Crackdown on Immigrants With Past Convictions for Petty Crimes

Why are our policies towards immigrants so harsh? Welch isolates a number of causes.

First, America has long been ambivalent toward immigrants. Detained sets out a brief history of immigration laws and policy in the U.S., from the first immigration laws in the 1860's to the present, explaining why this was - and remains - so.

Second, the "industrial-incarceration" complex makes big bucks out of building big prisons. Large numbers of detained immigrants help to justify its existence.

Between 1997 and 2001, the number of INS detainees skyrocketed from 8,200 to more than 20,000. Why? Welch provides evidence that it was a monetary calculation: INS, he claims, calculated the cost of detention versus the costs of services to immigrants, including education and health care, and chose detention as the cheaper alternative.

Congress continues to increase the INS funds allocated to detention. One-third of that money is spent on renting cells in remote state and local jails where there are beds to spare. At a minimum, it's a symbiotic relationship: Welch tells of a Delaware jail warden who places a call to INS when he has beds to fill. "Send me 70 inmates," he says, and they appear in a matter of days.

Third, immigrants are easy scapegoats for national ills. Today, it is "terrorism;" in the past it has been crime. For instance, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which was enacted in 1996 as a part of the Anti-Terrorism and Effective Death Penalty Act, imposes brutal penalties on immigrants for even minor offenses. The Clinton Administration's "get tough on crime" policies came down hard on immigrants.

1996's Illegal Immigration Reform and Immigrant Responsibility Act

Indeed, even a past conviction counts; IIRIRA makes the reclassification of petty crimes retroactive. That means - and this has actually occurred - that immigrants with 15-year-old, or even 20-year-old misdemeanor convictions, can be rounded up and deported on the ground that those convictions are now deemed "aggravated felonies."

That the immigrant has been living peaceably in this country for all those years, and has a family here - including children who are U.S. citizens - makes no difference under the law. Nor does the fact that the immigrant may not have visited the country where he or she was born since early childhood, and thus may not even speak the native language there.

Meanwhile, IIRIRA permits harsh treatment even for immigrant children who have been separated from their parents at the border or abandoned. Though they've committed no crime, these children can be--and sometimes are--held in adult prisons. There, they have no access to attorneys, guardians ad litem, education, or other social services.

Post-September 11 Immigration Policies

The events of September 11 left politicians demanding to know why INS had let several of the hijackers "slip through the cracks," and enter and/or remain in this country illegally. As if to deflect attention from its own dysfunction and systemic failures, INS responded by enacting new regulations imposing stringent regulations on even those immigrants who are lawfully in the country.

For instance, almost all men of color from Middle Eastern, Arab, and Muslim countries who are currently in the country, legally or otherwise, must now periodically register with the INS. As a result, the INS has locked up hundreds of hard-working men for "technical violations" - many of them caused by the INS's own inaction on the men's properly filed papers. Some men and their families are escaping to Canada, seeking political asylum from what they perceive to be ethnic discrimination.

Meanwhile, the INS has asserted expansive powers when it comes to immigrants. It has claimed that they can legally be detained without being charged with any offense for months, even years (and since September 11, hundreds have been). If they are afforded hearings at all, the hearings may be conducted in secret, without benefit of counsel. Family members may never know that their loved one has been detained, even deported; the person may just disappear. And if countries to which INS wishes to deport them won't accept them, they may be imprisoned forever, under current regulations, in INS custody.

In addition, foreign visitors, including students, who are here on temporary visas, are subject to increased scrutiny and surveillance. They can now be fingerprinted and photographed when they enter the U.S., and their comings and goings can be tracked. Colleges and universities must fulfill stringent reporting requirements about their students, notifying the INS about even the most minor violations of school regulations.

A Long History of Blaming Immigrants for Social Ills May Be Peaking Now

The hallmarks of "moral panic," Welch explains, are stereotype and prejudice. During the Clinton years of welfare "reform," immigrants, as a group, were prominent among those who were blamed for the breakdown of the entitlement system.

Now, immigrants from the Middle East, as a group, are seen by many as terrorist threats because the September 11 hijackers were not citizens (at least one was here on a student visa). Largely forgotten is the existence of American-born and bred terrorists like Timothy McVeigh and Theodore Kaczynski - as well as the existence of large numbers of law-abiding immigrants from the Middle East. A terrorist is as aberrant among Middle Eastern immigrants as he is among U.S. citizens.

What Do INS Policies Mean for American Citizens?

Our belief that terrorists must be foreigners now has a strange flip side: As columns for this site by Anita Ramasastry and Joanne Mariner have recently detailed, under the current draft of the proposed Domestic Security Enhancement Act of 2003 (nick-named Patriot II), any American citizen, even native-born, who supports even the lawful activities of an organization the executive branch deems "terrorist" may be presumptively stripped of his or her citizenship. Then he or she may be deported to parts unknown, or indefinitely incarcerated.

Detained should be read by anyone interested in learning about the origins of the evolving "us versus them" posture that stigmatizes, criminalizes, and incarcerates immigrants in the name of "freedom" and "national security." The way a country treats its vulnerable residents should be of concern to all Americans who profess to value human rights. But, as the draft of Patriot II suggests, the treatment of immigrants may foreshadow the treatment of citizens in the years to come.

In this regard, Detained serves up an oblique warning: Americans ignore current immigration practices at a very real risk to their own freedom. For the way "we" treat "them" now, may be a precursor to the way our government treats us in the not-too-distant future.

Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the author of Criminal Behavior (Allyn & Bacon, 2001) and is chair of the American Bar Association's Science and Technology Law Section's Behavioral Science Committee. The views expressed in this column are hers alone, and not necessarily those of the American Bar Association.

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