Tuesday, October 19, 2021

Detention or Punishment?

Guest blogger: Manjinder Kaur, law student, University of San Francisco

Many, if not all, immigrants that migrate to the United States often have this idea of the United States being a country where one gets freedom or where dreams become reality. But the sad reality is that these dreams are often times broken when a migrant becomes familiar with the treatment of individuals in detention centers. The torture and separation faced by those in detention centers often leaves them in worst situations than they would have been in if they had stayed in their home country.

The horrific treatment of individuals in detention centers is not a new tactic employed by immigration officials, but rather something that has taken place for several years. In Wong Wing v. United States, 163 U.S. 228 (1896), the Court found that subjecting the defendant to hard labor was not permissible because it was a form of punishment that cannot be enforced without there being a jury trial. Furthermore, since immigration laws and enforcement are rooted in civil law and not criminal law, officials can detain but cannot submit the detainees to punishment.

The Court further clarified the limits of detention in Zadvydas v. Davis, 533 U.S. 678 (2001) by ruling that indefinite detention is not permitted for those ordered deported and post-removal period detention is limited to a period reasonably necessary to bring about the detainee’s removal from the United States. An exception was noted in Demoore v. Kyung Joon Kim 538 U.S. 510 (2003) where it was held that one can be detained for an unreasonable or indefinite amount of time when your removal hearing is pending.

But how does this all relate to the question of the conditions of detention centers today? Well, today many immigrants are kept in detention centers where the conditions are so inhumane that it might as well be considered punishment. An example of such treatment is a New Mexico ICE facility, a privately run facility in Torrance County that failed its annual government inspection. At least 22 deficiencies were found as a result of the inspection. The main concerns involved issues such as the facility being understaffed, unsanitary food conditions, and visitation rules that were inaccessible to those without the money to fund such visits. The facility being understaffed led to circumstances such as legal visits being put off for two weeks. Not having access to make legal visits only adds on to the stress the detainees face while being locked up in facilities where they are uninformed about their cases or the options available to them. Furthermore, unsanitary food conditions led to health concerns for detainees such as stomach aches due to the food being undercooked and the dishes not being properly sanitized especially at a time when COVID concerns are at such an extreme. Not being provided with adequate food is an egregious violation against basic human rights because it can lead to one of two outcomes: starving or developing health conditions. Lastly, the visitation rules changed due to the COVID pandemic in which general visitation was replaced with paid video calls through a tablet which made it inaccessible to those who did not have the funds to be able to make those calls. Sometimes, even if a person was able to place a call, the lack of internet stability led to calls being more expensive since it often took a long time for calls to be made or images to load. Such conditions only highlight the system’s inefficiency in implementing proper procedures in ensuring the conditions that detainees are kept in are humane and at the very least provide basic amenities.

However, the Nakomoto Group’s action in failing the annual inspection at the Torrance facility has at the very least brought attention to the problem at one facility and can be an eyeopener for other facilities where such practices take place. For a private company that usually takes the side of the facilities, this could be a wake-up call to detention centers that often pass their checks even when the conditions employed by these ICE facilities deny basic amenities to those that are detained there. However, earlier this year and prior to the Torrance County incident, the Nakomoto Group passed a facility in Otero County in New Mexico which has had a history of inhumane treatment of its detainees. So, whether there will be actual changes in the treatment of detainees in New Mexico ICE facilities is a question that remains unanswered.

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https://lawprofessors.typepad.com/immigration/2021/10/detention-or-punishment.html

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