INZUNZA: Civil immigration detention? How much detention can we afford?

Ricardo Inzunza
Ricardo Inzunza

Well he’s done it again! President Trump made it quite clear that he believes we have an immigration crisis on the Mexican border. To stem the tide of imaginary immigrants he believes are swarming into the country surreptitiously, he signed a “get tough” memorandum ending what is derisively referred to by immigration hawks as the “catch and release” program. To underscore the seriousness of his conviction to make the border great again, the President ordered that National Guard units be embedded with Border Patrol Officers until his security wall is built.

Unfortunately, the President’s latest outburst is wildly overblown. Labeling immigrants as criminals to pave the way for their detention should never be used as the default approach for enforcing immigration laws. Reducing immigration enforcement to a one size fits all approach by stripping ICE officers of the discretion to determine who must be detained and who can safely be released illustrates a gross lack of knowledge for the human complexity of immigration enforcement. Moreover, the assumptions underpinning the cancellation of “catch and release” are specious drivel. Peter F. Drucker, whose writings contributed so much to the philosophical and practical foundations of the modern business corporation wrote, "Get the assumptions wrong and nothing else matters. You will fail."

President Trump’s assertion that immigrants are flooding through our border fortifications is simply not true. Arrests on the Southern border have been declining for decades and today are at 40-year lows. More Mexicans are leaving the country than are arriving and last year for the first time in immigration enforcement history more Non-Mexicans than Mexicans were arrested trying to slip into the country.

Finally, in the mix of individuals detained attempting unauthorized entry fewer are first time entrants. The bulk of the detainees are persons attempting to rejoin their families after brief and casual departures from the country. In support of his skewed logic, President Trump has implemented a regressive policy based on concocted assumptions rather than managing from the facts. Making decisions, and investing in flawed assumptions is simply bad leadership. For those unfamiliar with the “catch and release” program, here is what the President cancelled.

Under “catch and release” when ICE officers encountered persons who they believed were here without an immigration status, they were required to make a comprehensive threat assessment. If it was determined that an individual posed a national security risk or had a previous criminal conviction, they were mandatorily detained until they could be removed from the country. Most will agree that this was a prudent course of action. After all, we have enough criminals and security threats of our own. We don’t need to import more.

Next, individuals who did not represent a national security threat, or who had no criminal conviction, but who, in the opinion of the ICE officer, represented a flight risk could be detained or released on an immigration bond. Then, if an individual released on bond didn’t show up for a hearing the breached bond would have covered the additional cost for ICE officers to round these individuals up.

Finally, those individuals and families who represented no security, criminal or flight risks were routinely released on their own recognizance while awaiting a court hearing not only as a humanitarian matter but also as a family and cost saving measure. Currently, immigrants enrolled in the deportation process who were released from detention show up for their hearings 99 percent of the time and comply with orders of removal 84 percent of the time. Under the President’s new policy 100% of folks, including women and children, in deportation proceedings must be detained. If it comes to pass, this is going to be an amazingly cruel and expensive failure. Here are other problems with the President’s new policy:

• ICE officers would like nothing more than to be allowed to perform the jobs they trained for. They, like most Americans, want to prioritize enforcement against repeat immigration violators and those with criminal records who pose a threat to society, rather than being forced to target immigrants with no criminal records, who pose no danger to the community, public safety or border security. But, the President’s mandate strips them of their use of discretion and causes them to squander resources on detention and deportation of those who pose a threat to no one.

• How much detention can we afford? Here is a simple cost benefit analysis. Estimates from the Department of Homeland Security indicate that it costs taxpayers $170 per day, per individual, detained in a contract detention facility. This means that it presently costs US taxpayers more than $5,000,000 daily to detain non-criminal individuals. Before cancellation of the program, this number was set to rise to more than $8,000,000 daily. I am certain it will come as no surprise that most of the taxpayer money used to pay for these detention services is going to a couple of private detention companies who are making a fortune. Compare this to alternative forms of control, such as release on bond or own recognizance release, where the cost per detained individual ranges from 15 to 20 cents daily and the control rate is nearly 100%. This detention policy has more holes in it than a 10-dollar toupee.

• One sure symptom of a mismanaged immigration system is unnecessarily spending billions of dollars on locking up hundreds of thousands of non-criminals yearly. Before the President cancelled “catch and release” Congress, unhappy with the removal rate of criminal immigrants, mandated that Homeland Security detain 34,000 criminal immigrants daily. The operative word here is criminal. ICE was having difficulty meeting the criminal detention mandate. Under the guidance of Attorney General Sessions, ICE started filling the quota with non-criminal immigrants. Before “catch and release” was cancelled, detention of non-criminal immigrants was costing taxpayers more than $4 billion yearly and they represented more than 30% of the detained population. If the President has his way, 100% mandatory detention of immigrants, the cost will rise to $1,700,000,000 daily and we will have more than 10,500,000 persons in detention.

• Courts have long held that immigration detention is a form of civil confinement, because deportation trials, which immigration detention is part of, are civil proceedings - not criminal. Despite immigration detention’s legal characterization as civil, individuals in immigration confinement are frequently treated no differently than individuals in criminal confinement. Immigration intent and Criminal behavior are as different as night and day and should never be co-mingled. However, with few exceptions, private contractors engaged by ICE to provide civil detention services operate their facilities like prisons. ICE contractors primarily rely on the correctional incarceration standards of care, custody, and control protocols designed for convicted criminals. With the blessing of the Department of Homeland Security, these contractors impose criminal style restrictions that carry far more costs and phycological damage than is necessary to effectively manage and care for the detained non-criminal immigrant population.

• On April 9, 2018, the Congressional Budget Office (CBO) predicted that the current administration will run up a trillion-dollar deficit by 2020. This is two years sooner than originally projected by the CBO. However, the newly appointed White House Chief Economic Adviser Larry Kudlow reported that President Trump doesn't believe that his tax cuts and spending bill will drive the national debt to its highest level since World War II. The Chief Economic Adviser added parenthetically, “Even though the President doesn’t agree with the CBO projections, the administration is feverishly looking for ways to lower spending significantly.” The irony between the President’s decision to end “catch and release” and the CBO’s predictions that we are spending ourselves into oblivion are not wasted on me. If only individuals who pose a danger to the community or as a significant flight risk are detained, the taxpayers will save a lot of money. For the relatively few who require follow on monitoring there are less expensive alternatives to detention which can be used. Taxpayers will save billions of dollars in needless and hurtful detention of non-criminal immigrants.
President Trump has "whipped up" a lot of popular anxiety with his claims that all immigrants need to be locked up to keep them from laying waste to the nation. To be sure, locking people up has its supporters; however, mass imprisonment of non-criminals as a crime fighting strategy is a fool’s errand. Crime and immigration should never be conflated. They are not the same thing. Over the years a substantial body of knowledge has built up confirming two simple yet powerful truths about the relationship between immigration and crime: immigrants are less likely to commit serious crimes or be jailed than native-born individuals, and high rates of immigration are associated with lower rates of violent and property crimes. This holds true for immigrants as well as non-immigrated residents alike, regardless of their country of origin or level of education.

In other words, most immigrants are not “criminals” by any commonly accepted definition of the term and never will be. If the Administration’s hope is that harsh immigration policies are going to lower crime statistics, those hopes are doomed to frustration and failure. These policies will not lower crime rates, but they will wreak devastation, despair and heartbreak on the lives of families who have set roots and developed equities in America.

The federal government has a fifteen-year history of intermingling immigration detention and crime-fighting legislation, in word and deed. They have strongly conveyed the message that the President, the Congress and even the American people view civil immigration detention as an effective criminal law enforcement tool. Now, the administration is busy selling the notion that detaining non-criminal immigrants is essential for enhancement of national security and public safety.

As the nation grapples with what to do about an over-reliance on criminal incarceration and the administration works diligently to criminalize immigrants, the time is ripe to revisit the issue of civil immigration detention before it breaks the bank.

Congress must reexamine and modify why and when civil detention is required, including maximizing the use of alternatives to detention programs to take advantage of cost savings. In addition, the government must be prudent with limited resources by detaining only those who pose a risk to national security or public safety. Prioritizing the use of scarce resources is the responsible thing to do, is consistent with other immigration policies, and will help accomplish the important objectives of enforcing immigration laws. A close examination of the figures makes it clear: the numbers behind civil immigration detention simply do not add up to a sensible policy.

The Administration needs to spend less time and money trying to criminalize non-immigrated residents for political gain and spend more time trying to humanize them.

Ricardo Inzunza, a native of San Diego, California, was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President Ronald Reagan. During his 8-year tenure, his office was the central source for the development, implementation and oversight of all immigration service policies and practices. Now as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the Peoples Republic of China. He can be reached at 662 268 1115 (O), 662 418 0913 (M), or