On Saturday, December 3, members of Occupy Birmingham traveled to the Etowah County Detention Center in Gadsden, Alabama to stand in solidarity with opponents of HB56, Alabama’s harsh anti-immigration bill.
Among those in attendance were undocumented immigrants, such as Victor, a young man who was denied enrollment into any of the collages he was accepted to because, despite growing up in America, he was classified as an international student. Victor stood before the crowd and proclaimed, “I am undocumented and I am unafraid” before launching into a passionate speech.
“I have been here since I was six years old,” Victor said. “I consider myself a Mexican, and American, and a southerner. To anyone who says, ‘what part of illegal don’t you understand?’ I say, ‘what part of humanity don’t you understand?’”
His speech, like all the others, was translated into perfect Spanish. The translators – a young black man and a young white man – were symbolic of the diversity within the crowd.
13-year old Jocelyn stood before her supporters, nearly shaking as she struggled with the bullhorn. At first she just seemed nervous, but soon the extent of her trauma was made known. Her mother, who brought Jocelyn to the United States as a six-year old girl, had fled the state last month with her husband and baby daughter because she feared the implications of HB56. Jocelyn, through tears, spoke of how she begged her mother to let her stay – just one more year – and live with her uncle, because she wants to finish school. “I stayed because I want to fight for my dream – I want to be the first one in my family to graduate,” she said.
Mrs. Mohammad was detained with her husband and 18-year old son in 2009. The family was forced to make the devil’s choice between the two parents. As her husband was the sole wage-earner, they decided he would stay with their remaining children while she joined their son in custody. She was held in detention, not only with other immigrants, but with criminals. Though she pleaded with the prison authorities, they repeatedly made her remove her religious headcovering to be photographed during processing. The photographer was male – a violation of her religious rights and an assault on her dignity. As for her now 21-year old son, he was born in Saudi Arabia but was raised in the United States – his parents brought him here when he was just a year old. “We are not criminals. We are immigrants. We are here to work and raise good children.”
Though our original plans were to surround the facility, we were given permission only to march around the front on the sidewalk. As we marched and chanted, we began to see faces appear in the top windows. They began to rattle – “let our people go” and there they were, able to see our outpouring of love in the form of signs and chants, screams of “we love” you and fingers held up in ‘V’s. “Una familia!” we yelled, and the detainees, our sisters and brothers in bondage, yelled back. Amazingly the detainees held up signs of their own – “Detention = Injustice” and simply, “L-O-V-E-U.”
The Department of Homeland Security Fiscal Year (FY) 2012 budget request notes that Immigration and Customs Enforcement (ICE) developed an action plan that reduced the average length of stay (ALOS) for ‘criminal aliens’ by 11 percent in 2009. It makes no mention of the ALOS for non-criminal ‘aliens’.
The Migration Policy Institute report for that same year showed that 34% of ICE detainees had received their final removal orders. Title 8 of the Code of Federal Regulations (CFR) concerns “Aliens and Nationality”. 8 CFR 1241.33 stipulates, “once an order of deportation becomes final, an alien shall be taken into custody and the order shall be executed.” It does not specify how soon the removal is to occur, except that to be no sooner than 72 hours after the service of the final deportation decision. Nothing in the federal statute or the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) dictate how long an alien may be held after receiving their final deportation orders. Of the 10,771 detainees for which a final removal order date was provided, the average length of detention following those orders was 72 days. The average length of time in detention for post-removal order detainees, including time both before and after the final removal orders were issued was 114 days. 1,792 post-removal order detainees had been held for over six months. Information obtained via a FOIA request in January 2009 listed more than 400 detainees without any criminal conviction who had been held for more than a year.
The MPI report also spells out the underlying problem with ICE ‘criminal alien’ numbers – they include persons who have committed immigration-related crimes. For nearly 20% of the detainees in the MPI report “the most serious criminal offense recorded was traffic-related (13%) or immigration-related (6%).” Even with these petty offenses being considered criminal, an astounding 58% of the detainees had no criminal record whatsoever. The report editorializes, “[these detentions are] difficult to explain since mandatory detention laws largely apply to criminal aliens.”
There is an underlying financial incentive here. Though ICE’s FY2009 budget included $63 million for “alternatives to detention” programs, 12 of the 17 of the most immigrant-populated detention facilities were operated by private contractors – correctional facility companies who stand to make a higher profit from every full bed. For FY2012, ICE will pay the Etowah County Detention Center $30 per bed per day.
Laws like Alabama’s HB56 work in tandem with Secure Communities (SCOMM), a mandatory ICE program that allows federal and local law enforcement agencies to share biometric information through the FBI’s IAFIS and DHS’s IDENT programs. A person arrested under HB56 can be held for an additional 48 hours by local law enforcement, allowing ICE agents time to review these databases and detain them for deportation proceedings. The FY2012 budget request for SCOMM is $184 million, a $64 million increase over FY2010, and will expand program deployment to 96% of jurisdictions. DHS maintains that SCOMM will be fully implemented by 2013. Alabama signed on to SCOMM on April 25, 2011.
The IIRIRA combined Deportation and Exclusion proceedings into a new one – Removal, giving immigration judges the power to adjudicate both. §237 reflected the Woodby v. INS, 385 U.S. 276 (1966) decision that immigration officials must demonstrate “clear, unequivocal and convincing evidence” for an immigrant to be deported in order to sustain the specific deportation charge. The court found in Woodby that it is appropriate to place the burden of proof on the government, as is required in other denaturalization cases.
Under the IIRIRA, an immigrant ordered removed but whose home country will not accept returnees may still be administratively ordered removed and held in detention indefinitely. According to the Women’s Refugee Commission, others at Etowah County are victims of torture or persecution in their home countries. Immigrants who cannot be repatriated or who do not qualify for political asylum due to bureaucratic hindrances would, in a just system, be considered stateless people in need of protection, not detention. Article 31 of the 1954 United Nations Convention Relating to the Status of Stateless Persons protects such persons from expulsion except on grounds of national security or public order. The United States is, however, not a signatory to this convention.
The United States is also not alone in its increasing deportation efforts. Europe and Australia are increasingly hostile to immigrants, even defying the Refugee Convention to deport Iranians who qualify for political asylum due to a clear threat of persecution if forcibly returned. However, as flawed and xenophobic as our immigration laws may be, the people detained in Etowah County are not even being held according to the law.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court ruled that immigrants subject to removal but who could not be repatriated to their countries of origin could not be detained for longer than six months, barring extenuating circumstances. Though the case dealt specifically with non-citizens who were lawfully admitted to the country, it found that detention longer than six months would raise due process concerns. Specifically, the noted that the statute (INA Subsection 241(a)(6)) may be interpreted to justify indefinite detention. In Clark v. Martinez, 543 U.S. 371 (2005), the court clarified its position regarding to which non-citizens the language applies. Justice Scalia, writing for the majority, found that six months was the time reasonably necessary to achieve removal and a non-citizen may be eligible for release if they can demonstrate that their continued detention beyond that period will not further removal in the foreseeable future.
The problem with the Clark ruling here is that it is incumbent upon Etowah County detainees – the same ones who can only speak to their families via television screen and have little access to legal advice – to argue their case.
And this is where we come in.
As Victor said, “Revolutions start with thoughts. Revolutions start at home. We can do this together.”