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June 1998, Volume 5, Number 6

INS: Deportation, Detention

The INS deported 113,325 foreigners in FY97 and expects to deport 127,300 in FY98. In the first six months of FY98, the INS removed 78,291 foreigners, of whom 26,957, or 1,000 a week, were criminals. Half of the criminal aliens deported were involved in possession or sale of drugs. About 75 percent of those deported are Mexicans, and most Mexicans are removed from the US by bus.

The INS attributes the increase in removals to the greater availability of space to detain foreigners. The INS currently has 14,000 beds available, up from 6,600 in FY96; agency projections are that it will detain 24,000 foreigners in 2001 at a cost of $500 million. The INS has 3,400 beds in nine facilities that it operates, 1,450 beds in four private facilities, and rents over 9,000 beds in state prisons and local jails. Most foreigners are detained for less than two weeks, but those who appeal, and those from countries that refuse to take them back, may remain in detention indefinitely.

Many foreigners and US prisoners are housed in facilities operated by private companies, such as the Corrections Corporation of America, which was charged by a former employee with forcibly sedating and improperly restraining foreign detainees at its Elizabeth, New Jersey facility. CCA has 77 detention facilities across the US.

Many of those waiting to be deported are in state prisons. In May, the US government distributed $492 million in grants to 40 states and 200 cities to partially cover the cost of incarcerating unauthorized foreigners. Almost half of the funds went to California, which received $223 million. [The US has 1.2 million prisoners in 1,500 federal and state prisons, and another 500,000 inmates in 3,000 county jails. In 1995, the US spent more building prisons than building universities; California built 21 prisons between 1984 and 1995, and one new university campus. CCA is building three prisons with 4,328 beds "on spec" in California, saying that "the prisoners will come" from the INS].

In May 1998, the 1st US Circuit Court of Appeals in Boston ruled that immigrants can contest deportation orders in federal court, holding unconstitutional a provision of the 1996 IIRIRA that barred federal judges from reviewing deportation orders. The US Attorney General had interpreted IRRIRA to be retroactive, meaning that a non-US citizen convicted of a crime in the US could be deported if he came to the attention of the INS, and federal judges could not intervene:

The Court of Appeals ruling sends the case back to an immigration review panel that earlier said that because of the Attorney General's interpretation of IRRIRA it could not grant a waiver from deportation proceedings to a 28-year old Portuguese-born immigrant who committed crimes in the US as a teen.

In May, 1998, the US 9th Circuit Court of Appeals in San Francisco ruled that the INS had erred in deporting 5,000 foreigners accused of using false work authorization documents without advising them that they could appeal the INS charges. Under the 1990 IMMACT, a noncitizen accused of document fraud can be deported if he does not request an immigration hearing.

The case hinged on the forms that foreigners must sign to be deported after being accused of document fraud. In 1996, a federal judge in Seattle agreed with the foreigners' lawyers that the forms were too hard to understand, and ordered the INS to place media notices in Mexico and elsewhere in Latin America to notify people who may have been deported because of document fraud that they had the right to appeal the order to leave the US; the Court of Appeals upheld the lower court's ruling.

As deportations increase, so do incidents involving foreigners who do not want to be removed from the US, especially those removed from the US by commercial airlines on tickets bought for them by the INS. Some 23,000 foreigners were deported on commercial flights in FY97, and some violently resisted boarding. In several cases, foreigners who resisted boarding were later granted asylum in the US.

In addition to deportations, in the first six month of FY98, the INS located 700,000 foreigners illegally in the border areas of the US who agreed to leave the US voluntarily, plus 36,000 foreigners located inside the US who also agreed to voluntary departure.

Some of the foreigners deported from the US for committing crimes in the US find their way back. If apprehended, they are charged under Section 1326 of the federal criminal code for returning after deportation. In San Diego, federal prosecutors have developed a streamlined method of dealing with these so-called "1326 cases." Defendants who waive indictment, a formal pre-sentencing report, and a variety of appellate rights (a typical requirement in plea bargain arrangements) are given a fixed sentence that is less than the maximum that could be imposed.

Laurie Cohen, "Many Deportees Make Fracas at Airport Their Last Appeal," Wall Street Journal, May 6, 1998.