More than 100 days into his term, President Joe Biden has yet to take significant steps to change course on immigration detention. With Immigration and Customs Enforcement (ICE) still holding over 16,000 immigrants and asylum seekers, he needs to end the suffering flowing from this system. He should act now to make liberty—not arbitrary detention—the default approach and dismantle the U.S. system of mass detention of immigrants in abusive conditions.
President Biden told activists in Georgia in late April that, "Private detention centers should not exist and we are working to close all of them." Later the same day, he told reporters he had been "teasing" and suggested he couldn't make changes without passing legislation. We've documented long-standing problems in the immigration detention system, just as we've reported on how these abuses were exacerbated by a rapid expansion of the already sprawling system under former President Donald Trump. Biden can and should take concrete steps to dismantle this system, before Congress acts.
As a candidate, President Biden appeared to recognize the urgent problem. He promised to restore compassion and human rights to the immigration system and end for-profit detention centers because "no business should profit from the suffering of desperate people fleeing violence." Instead, a February executive order on phasing out the federal government's use of private prisons conspicuously excluded immigration detention. Interim guidelines issued the same month on ICE enforcement practices are failing to provide individualized and fair assessments of whether someone is being justly detained.
The U.S. is still needlessly and cruelly detaining people like Maura Martinez, a transgender woman from Nicaragua seeking protection in the U.S. For more than two years, she's been held at the Otay Mesa Detention Center in California, where trans people have reportedly been denied medical treatment, subjected to physical and sexual violence and placed in housing that does not accord to their gender identity. As with so many others still stuck inside a system built on needless detention, ICE has the legal and discretionary authority to release her, yet refuses to act.
The machinery for permanent legislative change, the Dignity for Detained Immigrants Act and Freedom for Families Act, is ready and waiting for Congress to act. But in the meantime, President Biden should immediately create a system to review the case of each person currently held in ICE detention. In line with U.S. human rights obligations, the process should start with a presumption that immigrants should not be detained. As Biden the candidate said, "Proven alternatives to detention and non-profit case management programs, which support immigrants as they navigate their legal obligations, are the best way to ensure that they attend all required immigration appointments."
Let's be clear, eliminating arbitrary detention is also about racial justice. Black and brown people make up the overwhelming majority of ICE detains, both a reflection and perpetuation of systemic racism in its approach to immigration enforcement and in the U.S. criminal legal system. Ending arbitrary detention means ending the practice of automatically detaining entire classes of people just because they are painted as categorical threats as immigrants.
Concurrently, the Biden administration should immediately begin to terminate ICE contracts with private prison companies and county jails that have substandard and unsafe conditions–as it's already doing with private prison companies used by the Federal Bureau of Prisons for criminal detention. As of January 2020, 81 percent of people detained in ICE custody were held in facilities owned or managed by private prison corporations. Nearly all the rest are in county jails that contract with the federal government. Private or public, large numbers of prisons, local jails and other incarceration facilities holding immigrants have been linked to human rights violations: notorious for poor treatment, including unsafe and unsanitary conditions, assault and abuse, negligent medical care and excessive use of solitary confinement.
During the COVID-19 pandemic, ICE and its contractors have proven over and over again that they are unable or unwilling to provide even a basic standard of care. With inadequate social distancing, personal protective equipment, sanitation and access to care, the COVID-19 infection rate in ICE custody has been five times that of prisons and 20 times that of the population at large.
The best way to protect the rights and health of the thousands of people needlessly detained is to release them. President Biden needs to deliver on his human rights promises and take measurable action to create a fair and humane system. Thousands of people in immigration detention are waiting.
