Sunday, April 7, 2013

Immigrant Detention: Unethical and Unnecessary

Guest blogger: Shani  Colson, second-year law student, University of San Francisco

In 2009, Immigration and Customs Enforcement (ICE) detained approximately 380,000 people as they were being processed in immigration proceedings. Across the United States, immigrants, including children and families, are being held in facilities that are concurrently housing criminals. Although immigration detention is labeled a civil matter, it is in application very much a criminal one – restricting liberty and access to fundamental rights. The government justifies this policy with the rationale that immigrants must be detained to ensure that they appear for their hearings and that those that are a threat to the public are restrained. While these are legitimate reasons for detention, there are other methods that can be used to fulfill these objectives and maintain human rights.

Over time detention has become more privatized, fueling an ever-growing industry. It is most profitable for these facilities to detain as many immigrants as possible while cutting corners on necessities. There is also little incentive to uphold rights such as due process and access to counsel. Because these facilities are not under the direct control of ICE, the process of correcting these violations can be complex and often ineffective. Even if ICE does make an effort to contact the facility, there is no certainty that there will be follow through. Particularly egregious is the lack of adequate health care being provided, with particularly severe impact on the LGBT community. Medication for diseases such as HIV and treatments for transitional health care are regularly withheld from inmates. This critical denial causes conditions to worsen and at times even leads to death. Some of these ailments require consistent treatment, for example the onset of AIDS can be significantly delayed or avoided, but without regular doses of medicine detainees are at risk of HIV progressing to a fatal stage. Treated as prisoners, immigration detainees are unable to fend for themselves and instead must rely on a flawed system that views them as nothing more than an unwanted intruder.

In order to retain health care, affirmative action is often required, but this is not always possible. Many times the LGBT community must hide their identity for fear of persecution from fellow inmates. Procedurally, detainees are often forced to call a guard over and request that their medication be given. However this risks the possibility that their LGBT status will be revealed, making them targets of sexual or physical abuse. Transgender individuals that are “passing” can easily incite the rage of other inmates when it is found that they are not following gender norms. Even when the request for health care is made, these detention facilities retain medical providers that are not knowledgeable about trans health matters. Unable to seek out specialized providers or even those with sufficient knowledge of their needs, the trans community is forced to forego treatment and suffer severe consequences.

These violations of human rights must be remedied and easily can be with the implementation of less restrictive alternatives to detention. As the law itself recognizes, detention is not a criminal matter and therefore should not be treated as such. If there is a way to allow immigrants to access health care, be free of violence, and continue to be with their families, then that method should be utilized. Ironically, we already have these mechanisms in place in our criminal system. If our goal truly is to make sure people appear for their court dates, then tools such as electronic tracking devices, registries, or parole officers can be used to accomplish this. These mechanisms achieved a high success rate in criminal matters and impose a lesser restriction while doing so. If these options are good enough to ensure compliance from our society’s criminal offenders, there is no reason we should not rely on them when processing a civil matter. Essentially, the government has weighed the value of life against the certainty of a court appearance, and decided in favor of the latter. This is unacceptable, human life is invaluable and should outweigh the convenience of any procedure. Detention is cruel in that it has the regrettable ability of not only devastating the detainee’s life but everyone they are connected to as well. It is time for immigrant detainees to be treated as human beings and for them to be given their most basic right to live.

bh

http://lawprofessors.typepad.com/immigration/2013/04/immigrant-detention-unethical-and-unnecessary.html

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