The Washington Post published an article this week captioned "The Trump administration's immigration jails are packed, but deportations are lower than in Obama era". The article puzzled over why there are so many aliens in detention, but chose an odd poster boy in doing so, and failed to see the evidence that was right in front of its face. They could always have called me to explain.
The article focuses on one particular alien to set the piece:
It has been nearly 700 days since Bakhodir Madjitov was taken to prison in the United States. He has never been charged with a crime.
Madjitov, a 38-year-old Uzbek national and father of three U.S. citizens, received a final deportation order after his applications to legally immigrate failed. He is one of the approximately 50,000 people jailed on any given day in the past year under the authority of U.S. Immigration and Customs Enforcement [ICE], the most foreigners held in immigration detention in U.S. history.
The majority of those detainees, like Madjitov, are people with no prior criminal records.
Logically your question would be, who is Bakhodir Madjitov (other than a person with no criminal record), and why has he spent 700 days in immigration detention? It takes more than 20 paragraphs to find out that he is an apparent P–3 visa overstay (paragraph 23), who was been under a final order of removal since 2011 (paragraph 26), and who was taken into custody (presumably by ICE) in 2017 (paragraph 28).
That still doesn't explain why, exactly, he's been in detention for so long, because as he explains in paragraph 29:
"My family, myself, we never did anything wrong," Madjitov said in a phone interview from the Etowah County Detention Center in Alabama, where he is being held, a thousand miles from his family in Connecticut. "That's why we chose to stay in this country, because of the freedom."
It takes several more paragraphs in which you are told about Madjitov's gardening habits, and what his family eats on the weekends (paragraph 42), before you get to the key point in paragraph 50:
ICE says that Madjitov's crime is his failure to leave the United States after receiving a final order of removal, and that the agency is authorized to continue holding him because he refused to board a deportation flight in June 2019, when ICE tried to remove him.
So, to be clear, he is in detention because he refuses to leave. And has refused to leave since 2011. If I had to make a guess, he is running out the clock hoping that articles like this one garner him enough sympathy to force ICE to release him. ICE should resist the pressure, because people like Madjitov make enforcement of the immigration laws impossible.
According to the Post, he has spent upwards of eight years under a final order of deportation — that is, he has received his due process rights, and failed to depart when the courts ruled against him. Now, ICE (obviously) has a travel document and a plane ticket for a man who has no right to remain. That is why he has spent 700 days in detention. If every alien under a final order of removal simply refused to leave, even when the arrangements have been made, no alien would ever be removed. Immigration court would simply be a kabuki theater in which some receive benefits, and the rest receive final orders of removal, with little difference between the two groups except for the fact that the former are on a path to citizenship.
Congress, in section 241(a) of the Immigration and Nationality Act (INA), clearly envisioned, and provided for, such a scenario. Specifically, section 241(a)(1)(A) directs DHS to deport an alien within 90 days of the entry of a removal order. The Obama administration plainly failed to do so in this case. Section 241(a)(1)(C) of the INA, however, extends the removal period beyond that 90-day period and authorizes DHS to keep an alien in detention "if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal." Section 241 is not meant to be a shield for aliens who don't want to leave.
As an aside, I would note that while he is in the Etowah County Jail, the Post insists on asserting that he is in prison (and "captivity", a term more applicable to hostages than immigration detainees) and that his refusal to get on the plane was his crime. The latter point is correct: Under section 243(a)(1)(C) of the INA, an alien under a final order of removal who "connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien's departure pursuant to such" order is subject to imprisonment for up to four years, and a fine. He could be prosecuted for that offense, but it would simply delay his departure.
As for immigration detention in a county jail being "prison", I would recommend not going to prison and referring to it as "jail". The inmates know the difference, and don't take kindly to the inference that the restriction on their freedom is comparable to the relative impediments of detention in a jail. Let alone in immigration detention.
In between, the Post takes many jabs at the Trump administration, mostly for its refusal to follow the non-enforcement policies of the latter years of the Obama administration. Case in point, paragraphs 51 to 54:
Between Oct. 1, 2018, and the end of September, the [Trump] administration initiated more than 419,000 deportation proceedings, more than at any point in at least 25 years, according to government statistics compiled by Syracuse University's Transactional Records Access Clearinghouse.
Unlike under Obama, deporting the migrants has proved more difficult. Many of those crossing the southern border have requested asylum, which entitles them to a certain amount of due process in the immigration court system — protections that the administration also is working to dismantle.
Immigrant advocates believe the system has become overwhelmed because of the administration's zeal to deport, even though in many cases it lacks the resources or legal standing to do so.
"The Obama administration, because they had enforcement priorities, were able to streamline deportations," said Sophia Genovese, an attorney with the Southern Poverty Law Center's Southeast Immigrant Freedom Initiative. "The Trump administration is making it harder for people to obtain visas or legal status, and at the same time their deportation priority is everyone. So because of that, they clog the system."
Actually, it is cases like Madjitov's that are "clog[ging] the system". He could go home, but he won't. It is also one of the reasons that "the system has become overwhelmed."
That is not the worst part of the Post's article, however. There is also this:
Immigrant advocates say the packed jail cells result from an administration obsessed with employing harsh immigration tactics as a means of deterrence. They say the Trump administration is keeping people like Madjitov locked up when they previously would have been released pending the outcomes of their cases.
ICE also is holding people longer: Non-criminals are currently spending an average of 60 days in immigrant jails, nearly twice the length of the average stay 10 years ago, and 11 days longer than convicted criminals, according to government statistics.
"ICE has sort of declared open season on immigrants," said Michael Tan, a senior staff attorney at the American Civil Liberties Union's Immigrants' Rights Project. "So you're seeing people who under the previous administration would have been eligible for bond and release being kept in custody."
First, Madjitov's case has reached its outcome, according to the very same reporting in that story. Second, if anybody thinks that the Obama administration's policies led to a sane immigration system, they are in error. And third, if anybody thinks that "ICE has ... declared open season on immigrants," they should look at the headline of the Post article itself, which notes that the current administration has removed fewer aliens than the previous one.
As for immigration detention being a "harsh immigration tactic", the Supreme Court says otherwise. In Wong Wing v. United States, 163 U.S. 228, 235 (1896), the Court (presaging Madjitov's case) explained:
We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person is wrongfully accused, but it is not imprisonment in a legal sense. [Emphasis added.]
This is simple Trump bashing for amnesty's sake.
In the Post's article, ICE explains exactly why so many aliens are in detention: "The increase in ICE's detained population this year was directly tied to the border crisis," [ICE spokesperson Bryan] Cox said. "About 75 percent of ICE's detention book-ins in fiscal year 2019 came directly from the border." That is the same reason why "the system has become overwhelmed." It is swamped by new arrivals.
This is borne out by U.S. Customs and Border Protection (CBP) statistics, which reveal that in FY 2019, 851,508 aliens were apprehended at the Southwest border, and an additional 126,001 aliens were deemed inadmissible at the ports of entry along that border. Congress directed DHS, in section 235(b) of the INA, to remove them all, which necessarily requires detention, unless they claim credible fear. Congress made clear that they should also be detained pending a credible fear determination (in section 235(b)(1)(B)(iii)(IV) of the INA), and detained if found to have a credible fear under section 235(b)(1)(B)(ii) of the INA "for further consideration of the asylum claim".
The number of apprehensions and inadmissibles in FY 2019 is significantly higher than the 396,579 aliens apprehended along that border and 124,511 deemed inadmissible at those ports in FY 2018. Even factoring out unaccompanied alien minors (UACs) and aliens travelling in family units (FMUs), neither of which group can be detained by ICE for any extended period, 368,812 single adults were encountered by CBP, either at the border or the ports, in FY 2019. And those aliens should be detained until they are granted relief or removed, both by law and by policy.
The Post's inanity doesn't end there, however. The article states:
Though President Trump has made cracking down on immigration a centerpiece of his first term, his administration lags far behind President Barack Obama's pace of deportations. Obama — who immigrant advocates at one point called the "deporter in chief" — removed 409,849 people in 2012 alone. Trump, who has vowed to deport "millions" of immigrants, has yet to surpass 260,000 deportations in a single year.
And while Obama deported 1.18 million people during his first three years in office, Trump has deported fewer than 800,000.
It is unclear why deportations have been happening relatively slowly.
That would be fine, except the paper then explains "why deportations have been happening relatively slowly":
Administration officials this year have noted privately that Mexican nationals — who are easier to deport than Central Americans because of U.S. immigration laws — also made up a far greater proportion of the migrants apprehended along the U.S.-Mexico border during Obama's presidency.
The reporter could have called me, a Washington-based pundit and former immigration judge, and I would have told her the same thing on the record. As I explained in an April 2019 Backgrounder, "prior to FY 2011, over 90 percent of arriving aliens were single adult males, and 90 percent were Mexican nationals." Most of those single adults from Mexico simply wanted to be removed, to attempt reentry again or to give up and go home because they had no possibility of relief. That has changed significantly in the last eight years.
In FY 2019, by comparison, 149,967 of the single adults apprehended by Border Patrol were Mexican nationals, but 114,500 were from El Salvador, Guatemala, and Honduras (the Northern Triangle of Central America). The vast majority of those aliens had paid thousands of dollars in smuggling fees to come to the United States, and were likely to fight removal, for example, by claiming credible fear. Those cases, which generally involve claims of gang recruitment, extortion, or targeting are more difficult to resolve, and the asylum claimants from the Northern Triangle would have been detained longer for those cases to be completed. That is one reason why aliens without criminal records "are currently spending an average of 60 days in immigrant jails, nearly twice the length of the average stay 10 years ago, and 11 days longer than convicted criminals." I know — I was an immigration judge in a detained court 10 years ago.
Another reason why there has been an increase in detentions is the fact that many removable aliens in the interior of the United States were allowed to remain under the Obama-era "priority" guidelines for deportation, which are referenced in the Post article.
Prior to the adoption of those guidelines, I saw in my court many aliens who would have been later covered by the guidelines. They took quick orders of removal because they had no relief. Instead of being removed, similar aliens later remained in the United States because they did not fall within the administration's priorities, and accrued equities during the time that they were here (not unlike Madjitov). Many of those aliens are now eligible for cancellation of removal under section 240A(b) of the INA, and are likely pursuing that relief, even if they are detained, increasing the average length of detention further.
Ideally, newspaper articles that discuss topical issues should explain the background behind those issues, and inform readers. Tendentious human-interest stories that are dressed up as reporting fail this standard on many counts. In the future, should the Post seek an objective, informed analysis that explains questions that it would otherwise leave open-ended, I can be reached at (202) 466-8185.