What the immigration reformers are missing

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In response to the 1995 Oklahoma City bombing by a U.S. citizen, President Bill Clinton and Congress began a program to deport millions of non-citizens. To deport them, you have to detain them. And so from 1994 to 1998, the average daily number of persons in immigration detention went from 6,785 to 15,447. Today approximately 34,500 non-citizens are detained by U.S. Immigrations and Customs Enforcement (ICE). In 2011, almost half a million were deported.
 
But who are these deportees? How many, for example, were lawful residents? That seems like information we should have. Unfortunalety, ICE's Assistant Director for Public Affairs Brian Hale and his subordinates have refused to provide it.
 
Real immigration reform will have to address the laws responsible for breaking up families and "removing" 1.4 million people from the U.S. in the past 4 years. It will have to accept that labeling someone a "criminal alien" doesn't change the fact that she may have a family and deep ties to this society -- and as much right to stay here as a U.S. citizen who has completed a criminal sentence. Here's why:
 
The 1996 laws drastically expanded the range of crimes for which lawful residents are subject to mandatory detention and removal. These laws also stripped such immigrants of the right even to apply for a waiver of deportation from an immigration judge. Thousands of detainees, including lawful permanent residents, are denied bond hearings and have "no chance to argue for their release before a judge, regardless of how long they languish in detention."
 
These laws don't actually control immigration; they subject non-citizens to a separate system of criminal justice. Incredibly, lawful residents have often become subject to deportation for past crimes categorized by these laws as "aggravated felonies" when the crimes are neither "aggravated" nor "felonies" in the criminal justice system (examples include certain shoplifting and simple assault offenses, as well as "unauthorized use of a vehicle").
 
Even then-Chief Justice William Rehnquist expressed puzzlement. And no wonder: as Senator Patrick Leahy (D-Vt.) said at the time, describing the secretive legislative process behind the '96 laws, few senators "have the foggiest notion of what it is they are voting on" (Philip Schrag, A Well-Founded Fear).
 
Only a few years later, though, some members of Congress belatedly saw the devastating effects of their willfully uninformed action. A true, bipartisan reform movement called "Fix '96" emerged, but it came to an abrupt end on September 11, 2001. Republicans and Democrats have continued to introduce hundreds of private bills to fix individual cases, but the laws persist.
 
Most individual detainees, of course, don't have the benefit of private congressional sponsorship. But like criminal defendants, they are in an adversarial system and must face government lawyers. That's why immigrant detainees should have a statutory right to court-appointed counsel. This idea is barely controversial anymore. George W. Bush's Undersecretary of Homeland Security Asa Hutchinson is among those Republicans at The Constitution Project who have argued for the right to counsel for ICE detainees.
 
ICE and Congress have tried to keep detainees and lawyers apart for a good reason.

Consider recent patterns in New York. Sixty percent of detainees in "removal proceedings" had no lawyer, and they won their cases only 3 percent of the time; detainees with lawyers prevailed 74 percent of the time.            `
 
Even ICE has indirectly acknowledged that its prisoners need representation. At a recent public relations event at the Etowah (Alabama) detention center, reporters dutifully reported their ICE tour guide's assertion that detainees "hold the key to their own freedom." This old ICE propaganda line is meant to hide the fact that many of those detained have legal claims they are entitled to make -- but no way to make them. What ICE is really saying is that detention is used to pressure detainees who have legal claims into giving up their claims. Immigration officials, with the backing of Congress, have long considered due process -- like public information -- to be an obstacle to administrative efficiency.
 
That much was true even before Bill Cinton met Timothy McVeigh. Fairness in immigration reform means that it, too, should change.

Dow is the author of American Gulag: Inside US Immigration Prisons (California). He teaches English at Hunter College in New York..