Comprehensive Immigration Reform Bill Expands ‘Alternatives’ to Detention

The Gang of Eight Senate immigration bill would take small but important steps to reform the immigration detention system.

By Seth Freed Wessler Apr 19, 2013

***[For updates as we work through the bill’s details, follow our What’s in the Bill tag.](*** The immigration reform bill introduced this week in the Senate would significantly expand immigration enforcement programs on the border and in the U.S. interior. But hidden deep in the bill are also provisions that could open detention center doors for some immigrants and provide greater protections for detainees. **Alternatives To Detention** The bill would require the Department of Homeland Security to consider "alternatives" to detention for non-citizens facing deportation proceedings. Currently, many immigrants convicted of a long list of crimes as well as asylum seekers are subject to mandatory detention laws. Immigration authorities have generally considered this to mean these non-citizens must be locked up. The new provision clarifies that immigrants who fall under the mandatory categories can be released from prisons and placed in other supervised programs, including the use of tracking devices. While these protections may provide some immigrants a way out from behind bars, the bill does not do away with mass detention. Congress currently ties the $2 billion it allocates for detention to a rigid detention bed quota that’s been interpreted to mean ICE must detain 34,000 on any given day. Over 400,000 people were detained last year. "[T]he overall goal of these changes must be to reduce the use of detention drastically. This is not possible without the repeal of mandatory detention." Andrea Black, director of the group Detention Watch Network, said in a statement. **Access to Legal Help** The bill also expands detainees’ access to legal help. Immigrants facing deportation do not have a right to appointed legal counsel because immigration law is civil not criminal. About 85 percent of detainees face deportation without an attorney. The legislation would provide funds to expand to all federal detention centers the Legal Orientation Program, which uses non-profit attorneys to provide detainees with legal information. Detention facilities would be required to provide the trainings to immigrants within 5 days of their arrival. The Senate bill would allocate funds for the Justice Department to appoint and pay for attorneys for detainees with mental illness and other "particularly vulnerable" immigrants. It also guarantees free legal assistance to children who enter the country alone. Last year, close to 14,000 [unaccompanied minors](, largely from Central America, were placed in a network of federal detention facilities specifically for this population. These children currently have no right to appointed legal counsel. **Detention Conditions** Because the Department of Homeland Security contracts out detention to private and country jails, conditions in detention can vary dramatically from facility to facility. The immigration bill would prohibit immigration authorities from contracting with a facility unless it complies with Immigration and Customs Enforcement standards. It imposes fines on facilities that violate these standards. Critics say the requirement remains weak because the bill creates no independent oversight over the facilities. Though the Senate legislation could protect many non-citizens on a path to citizenship from detention and deportation, an unknown number will remain undocumented because they arrived after the bill’s December 31, 2011 deadline or because they cannot pass a criminal background check or afford the $500 initial fee to begin down the path to citizenship. These immigrants could in the future be detained. And all immigrants on and off the path to citizenship will remain vulnerable to detention if they are convicted of a criminal charge.