The Problem of Prolonged Incarceration of Immigrants

Originally published at ACLU of Northern California
By Julia Mass and Jenny Zhao

Bertha Mejia is a 53-year-old grandmother who fled political violence and sexual abuse in her native El Salvador as a girl. She has four U.S. citizen children and is the primary caretaker for her 9-year-old grandson, Pablo. The victim of rape at the hands of her employer, Ms. Mejia has a strong case for a "U-visa," a type of visa for victims of crime who cooperate with law enforcement. The police have already certified that Ms. Mejia is a victim who has assisted the police in apprehending the perpetrator.

Unfortunately, Ms. Mejia also has a shoplifting problem. She began stealing food as a child to feed her brothers and sisters. She has had a series of minor offenses, mostly related to stealing food items, and was diagnosed with kleptomania in 2011. Ms. Mejia has no violent criminal history and has strong claims for legal immigration status, yet she has spent the last 16 months in immigration detention solely based on her shoplifting offenses. Her detention is based on a 1996 law that purports to authorize prolonged mandatory detention during immigration proceedings even for individuals who pose no threat to public safety.

Today, the ACLU of Northern California, along with Ms. Mejia's immigration attorney Rosy Cho, filed a petition for a writ of habeas corpus, seeking Ms. Mejia's release. We argue that Congress could not have authorized prolonged detention based only on a record that includes a crime of "moral turpitude" (like shoplifting or writing a bad check), without requiring the government to convince a neutral judge that prolonged detention is justified because the detainee poses a danger to the community or is a flight risk.

Ms. Mejia has no violent criminal history and poses no danger to the community. Her loved ones all live in the vicinity of where her immigration court proceedings are held. While her application for the U-visa is pending, Ms. Mejia has every reason to appear at all court hearings and pursue immigration relief. And yet, Immigration and Customs Enforcement, which has the discretion to release her with any conditions that they find suitable, such as bond or electronic monitoring, refuses to do so. The immigration judge who presides over her case has ruled that he has no authority to release her and so Bertha Mejia languishes in the Yuba County Jail.

Ms. Mejia is only one of many immigrants confined in an irrational detention system. On any given day, over 30,000 immigrants are locked up in facilities around the country as they fight their deportation cases. Many are subject to mandatory detention and are denied even a hearing before an immigration judge to determine whether their detention is justified. This overuse of incarceration not only shatters immigrant families, but also squanders taxpayer money.

As almost everyone acknowledges, our immigration system is in need of reform. In addition to providing a pathway toward citizenship to the many who already contribute to our culture and communities, reform must also include common sense solutions to our current unconstitutional, inhumane, and wasteful immigration detention practices.

Julia Mass is a Staff Attorney at the ACLU-NC. Follow her on Twitter @MassJulia. Jenny Zhao is the Liman Public Interest Fellow at ACLU-NC.