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Immigration Reform: Focus Enforcement, Protect Due Process

The US Immigration System Should Focus Enforcement on Genuine Threats and Protect Due Process Rights of All

The US immigration enforcement system has grown exponentially since the last major legalization program under President Ronald Reagan. Deportations have increased dramatically, from 30,039 in 1990 to over 400,000 in 2012, totaling over 4 million since 1990. As recently reported by the Migration Policy Institute, expenditures on immigration enforcement exceed spending by all other criminal federal law enforcement agencies combined.Yet rather than ensure public safety and enhance the rule of law, the indiscriminate enforcement of harsh laws has broken apart families and forced others to live in fear, while diverting public resources that could have been usefully spent in other ways.

Studies indicate that recent immigrants commit crimes at lower rates than US-born people. As local law enforcement gets increasingly involved in immigration enforcement through programs like Secure Communities, the interactions that lead to deportation are not arrests for serious, violent offenses, but often traffic stops and other matters that do not always lead to criminal charges. At the same time, an enormous number of crimes, including nonviolent offenses like shoplifting, now constitute “aggravated felonies” under immigration law (even if they do not match the definition of “aggravated felony” in criminal law) and are grounds for mandatory and permanent deportation, even of long-time lawful permanent residents. The federal crimes of illegal entry (a misdemeanor) and illegal reentry (a felony) also now make up over 50 percent of all federal prosecutions, driven largely by Operation Streamline and similar programs that seek to criminally prosecute everyone caught entering the US unlawfully. Customs and Border Protection refers more cases for criminal prosecution than the FBI, and some judges and prosecutors have raised questions about whether resources are being diverted from more serious criminal matters.

The sharply expanded caseload has severely impacted the rights of non-citizens to due process and to a fair hearing in both civil immigration courts and in the federal criminal justice system. The backlog in immigration courts has not diminished. A case for a non-detained person takes an average of 17.5 months to be adjudicated in immigration court, with some cases lasting over five years.Within this tremendously complex system, where losing a case can sometimes mean a permanent bar to returning to the United States, non-citizens are only represented by a lawyer if they are able to pay for counsel or can find pro bono assistance. The impact of having counsel is stark: asylum seekers, for example, are three to six times as likely to receive asylum if they are represented by counsel. Without appointed counsel, particularly vulnerable populations, like persons with mental disabilities and children, cannot fairly defend themselves or receive a fair hearing. Once a removal order is final, non-citizens have very limited opportunities to appeal the decision to a federal court. Thus, even when errors are made by immigration judges, it can be extremely difficult to remedy the errors, especially when the non-citizen has already been deported.

Even this flawed system of removal proceedings, with its delayed hearings and limited access to counsel, is unavailable to hundreds of thousands of people each year. The majority of deportations are not carried out through orders by an immigration judge but by mechanisms like “stipulated removals,” in which non-citizens accept removal before seeing an immigration judge, or “expedited removals,” in which non-citizens can only offer limited defenses to deportation and are heard not by a judge, but by an immigration officer. Many have reported being misled about and pressured to accept stipulated removal—even when they may have had valid claims to stay in the country legally—by officials who promised to release them or said, “You can come right back tomorrow.”[1]

The pressure of increased immigration enforcement has also had a significant impact on the federal criminal justice system. Under Operation Streamline and similar programs along the border, federal courtrooms have become unrecognizable, packed with defendants who plead guilty in groups, with lawyers who are able to meet with their clients for only 10 to 30 minutes at a time. Federal judges, prosecutors, and defenders have criticized Operation Streamline for wasting resources that would have been better spent on prosecuting more serious crimes.

And although the Obama administration claims that it is targeting serious and dangerous criminals for deportation, its claims do not hold up when the statistics are scrutinized. Although a greater proportion of non-citizens deported now have criminal convictions than ever before, of the 188,382 non-citizens deported for criminal convictions in 2011, 42 percent had as their most serious offense a conviction for immigration or criminal traffic offenses. Four years earlier, when there were almost 50 percent fewer deportations of people with criminal records, traffic offenses did not even make the top 10 offenses.

The blurring of the line between civil immigration enforcement and criminal law enforcement is perhaps most apparent and problematic in the vast system of immigration detention. To deprive a person of his or her liberty is a grave matter, particularly when it occurs outside the criminal justice system, with its established due process protections. Many nonviolent offenses, including minor possession of controlled substances and shoplifting, trigger a “mandatory detention” provision in immigration law, meaning immigrants (including lawful permanent residents) have no opportunity to post bond. By contrast, in the US criminal justice system, no one is held in comparable circumstances (in pre-trial detention, for example) without a hearing to determine if they are a flight risk or dangerous.

Immigration detention is supposed to be civil and administrative in nature, rather than punitive, and it should be used as sparingly as possible. As the American Bar Association has recommended, civil detention should be closer in nature to housing in a secure nursing facility or residential treatment facility than to incarceration in a prison. About half of all detainees have never been convicted of a crime, and even those convicted of a crime have already served any sentences meted out by the criminal justice system.

In the last decade, however, an expensive and extensive system of detention centers and local jails have held 3 million non-citizens, without due consideration of whether they are actually dangerous or at risk of absconding from legal proceedings. Numerous detainees, including torture victims and children, have endured punitive conditions in which medical care is grossly inadequate and sexual abuse goes unreported or unaddressed.

Prolonged detention also severely impacts non-citizens’ ability to fight deportation, as continued detention often separates them from their families, limits access to counsel (particularly when they are transferred far from home), and leads to financial hardship. Rather than ensuring that immigrants attend removal hearings, such detention unfairly impedes their ability to receive a fair hearing.


  • Reject the draconian and arbitrary provisions of the 1996 amendments to the immigration system and limit the definition of “aggravated felony” to serious violent crimes classified as felonies under state law.
  • Restore discretion to immigration judges to weigh evidence of rehabilitation, family ties, and other equities against a criminal conviction in deciding whether to deport lawful permanent residents.
  • Ensure that lawfully present non-citizens, and those non-citizens whose legal status is in dispute, who are facing removal have access to judicial review and appeal to a higher authority, as required by international human rights law. In addition, ensure that detained individuals, including those detained pending deportation, have access to judicial review of the decision to detain them. 
  • Reform the expedited removal process to allow for a fairer and more complete review of a non-citizen’s arguments against deportation.
  • Ensure immigration judges provide custody hearings for “arriving aliens” on an individual basis and review all deportation orders in order to reduce the risk of wrongful deportation.
  • Make legal counsel available to indigent vulnerable immigrants, such as mentally ill persons and children, facing deportation or seeking asylum.
  • Eliminate arbitrary deadlines currently in law, such as the one-year limit to apply for asylum.
  • Halt Operation Streamline’s expansion and evaluate the need for continuing operation of such programs.
  • Reform immigration detention, and:
  • Limit mandatory detention to violent offenders;
  • Do not subject lawful permanent residents and asylum seekers to mandatory detention (unless they are shown to be a safety or flight risk);
  • Expand the limited alternatives-to-detention programs currently in use;
  • Prohibit all long-distance transfers of detainees that could interfere with assistance of counsel or unduly separate detainees from their familes;
  • Guarantee proper treatment of detainees, including access to adequate medical care;


No Second Chances

Antonio Cerami came to the United States from Italy with his ­family when he was 12 years old, as a lawful permanent resident. In 1984, he met Cristina, who is a US citizen, and they were ­married in 1992. Antonio became stepfather to her four children, and the couple had a son of their own.

Cristina told Human Rights Watch, “We were fine, we were just a normal—not a rich—family, but very comfortable, right? I went to work, he went to work, we hardly ever saw each other because we worked for 10 hours. But we had a plain old normal life.”

Then, in 2003, Antonio decided to take his young son and wife on a three-week trip to Italy for a niece’s wedding. Upon their return to Chicago’s O’Hare airport, Antonio was taken into custody in connection with a conviction he had received 19 years earlier for participating in the attempted robbery of a pizza parlor. Antonio had been sentenced to six years in prison and released after three years for good behavior. Although he had since complied with all conditions of his parole and lived without further troubles with the law for over 15 years, Antonio was ordered deported back to Italy. Cristina explained what happened when she was called to testify at the immigration court:

When I begged the judge not to take Tony away, the judge said, ‘You have a job, you can work.’ Well what happened to America and family unity? What happened to that? Does that not mean anything? No child left behind?… My husband paid taxes. He was here for 30 years [before his deportation]…. My daughter, you should have seen the way she was crying.… He was her dad. He raised her since she was five years old.

Cristina’s youngest son had to undergo counseling after his father was deported. With the loss of Antonio’s income and expensive legal fees, Cristina lost their house in the suburbs.

Her oldest daughter moved in with her boyfriend’s family and, Cristina explained, “Right now we don’t really have a home.… John lives with a friend, Jessica lives with another friend, Danny’s with his uncle and Angela lives with another friend. They have really split us up.”

Human Rights Watch interview with Cerami family, Chicago, Illinois, February 5, 2006, in Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, July 17, 2007,


A Mother Convicted and Imprisoned as She Tries to Return to Her American Family

Last year, “Brenda R.’s” two adult sons were killed in Mexico. She said her sons were not involved in any ­criminal activity, but one son had befriended a woman said to be the girlfriend of a local drug trafficker, in a small town in the state of Chihuahua, the site of considerable drug-related violence. After receiving threats, Brenda’s son and his brother decided to leave town. But before they could leave, they were gunned down in the parking lot of a bar.

Brenda traveled to Chihuahua to bury her sons, but also started asking questions about the police investigation and the woman with whom her son had been involved. Fighting back tears, Brenda remembered that local ­residents and the police in Chihuahua had warned her to stop asking questions.

Feeling unsafe in Mexico, Brenda tried to return her family in Texas. Although she had no legal status, she was a long-time resident of Dallas and was married with two US-born children. But that made no difference when she was caught in an area covered by the federal program known as Operation Streamline. Under its zero-tolerance policy, Brenda was criminally prosecuted and convicted of the federal misdemeanor of illegal entry.

In desperation at being separated from her American family, Brenda tried two more times and each time, she was referred for criminal prosecution.

Brenda had never been in trouble with the law before. She now has a federal criminal record with two illegal ­entry convictions and one for presenting false documents, and very limited options for reuniting with her US ­family. She ended up spending 60 days in a county jail, and she still remains in immigration detention, fighting for a chance to show that her life is at risk back in Mexico.

Human Rights Watch interview with Brenda R. (pseudonym), Pecos, Texas, September 24, 2012.


Human Rights Watch reports on related issues:

Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions

No Way to Live: Alabama’s Immigrant Law

Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy

Forced Apart (By the Numbers): Noncitizens Deported Mostly for Nonviolent Offenses

Costly and Unfair: Flaws in US Immigration Detention Policy

Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System

Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States

A Costly Move: Far and Frequent Transfers Impede Hearings for Immigrant Detainees in the United States

Detained and At Risk: Sexual Abuse and Harassment in United States Immigration Detention

Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention

Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status

Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service

Locked Away: Immigration Detainees in Jails in the United States

Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service

Crossing the Line: Human Rights Abuses Along the US Border with Mexico Persist Amid Climate of Impunity

Brutality Unchecked: Human Rights Abuses Along the US Border with Mexico


[1] Human Rights Watch interview with Elizabeth (last name withheld), San Juan, Texas, September 16, 2012. See also Jennifer Lee Koh et al., “Deportation Without Due Process,” a joint publication of Western State University College of Law, Stanford Law School, and the National Immigration Law Center, 2011, (accessed January 8, 2013).

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