Jailing immigrants indefinitely is an assault on due process

Inhofe’s proposal would authorize the indefinite-or potentially lifelong-detention of thousands of immigrants who cannot be deported because their country refuses to take them back. Even worse, the amendment would authorize the detention for months, even years, of people awaiting the outcome of their immigration court cases. 

Such persons would be locked up without time limits and never provided the basic due process of a bond hearing, where an immigration judge could determine whether their detention is justified at all, and if so, under what circumstances.  This radical change to our immigration laws would sweep up thousands of immigrants who pose no flight risk or threat to the community, including asylum seekers with no criminal records and longtime green card holders with old or minor misdemeanor convictions for offenses like shoplifting or possession of marijuana.  
 
This amendment would be disastrous for both our immigration system and a nation that prides itself on individual liberty and due process of law. In my 17 years as a federal immigration judge in Los Angeles, I saw first-hand what indefinite and prolonged detention can do to immigrants who have been more victims than victimizers. 

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Take "Dolores" (a pseudonym), a woman very much like the individuals who routinely appeared in my court.   Dolores is a survivor of domestic violence and an asylum seeker who languished in immigration detention for nearly two years while trying to win refuge in the U.S. from her native Honduras.  Her only conviction was for reentering the U.S. after previously being deported-which she did to escape her abuser. Finally, after her asylum case had been pending on appeal for over a year, and after nearly two years of detention, U.S. Immigration and Customs Enforcement released Dolores on conditions of supervision, with the help of staff and volunteers with Advocates for Human Rights.  She is presently living at a women's shelter.  In total, her two years of unnecessary and painful detention cost taxpayers approximately $58,400. 
 
Inhofe’s proposal would consign Dolores and countless immigrants like her to long-term immigration detention without any meaningful review over whether they even need to be locked up in the first place.  Such a draconian regime not only violates our fundamental commitments to individual liberty and due process of law, it also is wasteful. The amendment would create a vast new federal preventive detention system that would prove extremely costly in a period of ongoing fiscal crisis.  Detention already costs taxpayers approximately $45,000 per detainee per year, or approximately $2 billion annually; a set of expanded detention mandates would only cause costs to skyrocket further.  In addition, immigrants who would otherwise contribute to our economy by supporting their families and paying taxes would be unnecessarily detained at government expense. 
 
Even worse, for all the financial and constitutional problems this amendment would create, it would not even achieve its stated goal of enhancing public safety.  Existing laws provide for the detention of truly dangerous individuals and the limited number of noncitizens who pose a danger to national security but, for whatever reason, cannot be deported at this time.  We do not need to distort the purpose of our immigration jail system and create a new preventive detention regime to keep our streets safe.
 
Instead, diplomatic pressure-not indefinite detention-is the proper response to the political problems that prevent the deportation of those found removable from the U.S.  The Senate immigration reform bill already does this by penalizing those countries that refuse to take back their own nationals-for example, by suspending certain U.S. visas to citizens of those countries.   Unlike the Inhofe amendment, this approach is a cost-effective means of addressing the real political problems that hamper deportations.
 
Did the detention of Dolores, and thousands like her, make us any safer?  Would the passage of the Inhofe amendment, and the resulting increase in prolonged and even indefinite detention of the immigrants among us truly enhance our national security?  Are we to be a nation of laws and due process or a nation of jails and more jails?  The Inhofe amendment is an assault on what makes us a civilized nation.  It should be rejected.
 
Einhorn is a former U.S. Immigration Judge and federal prosecutor, and currently serves as a Professor of Law and Director of the Asylum and Refugee Law Clinic at the Pepperdine University School of Law in Malibu, Calif.