Hopes for abolishing of one of U.S.’s most harmful immigration policies — deportation following incarceration in the criminal legal system, or “double punishment” — is withering as the Biden administration continues to snub immigration reform.
According to a Syracuse University study report3,481 immigrants are currently under removal proceedings. Many of them were taken into custody upon their release from prison. Advocates warn that even though this number is down from last year’s, it doesn’t mean that the number of immigrants in removal proceedings will drop. However, if there aren’t changes to the underlying laws and policies, what goes down in one reporting period can lead to a rise in the next.
“The numbers are still astronomical in terms of the sheer number of people deported from their loved ones after a conviction or arrest,” Heidi Altman, director of policy for the National Immigrant Justice Center (NIJC), told Truthout. “There are many ways this could be done even without congressional action — through reversal of harmful Board of Immigration Appeals precedent, through rulemaking to allow greater access to bond hearings for those detained on the basis of criminal convictions, through processes to allow those unjustly deported to be returned, and/or through policy memos and training that requires officers to consider the racial bias inherent in the criminal legal system when making detention and deportation decisions. But none of that has happened.”
Instead of being returned to their communities and families for reentry to the society, they are often held for six months or more in private detention facilities for profit. They then get deported to countries they have not lived in for decades, do not know anyone, and cannot speak the language. Besides the financial burden to taxpayers — $1.4 billion is budgeted in 2023 for 25,000 beds in Immigration and Customs Enforcement (ICE) detention — and the harms to the people being doubly deprived of their liberty, therei is a social penalty for punishing people solely based on their birthplace.
“You have two people who are arrested for the same thing and the sentencing judge says you both get X time in jail. But after that, one of those people gets to live the rest of their life with their loved ones and family, and the other one gets permanently exiled to a country they may not have seen since they were a baby — what does that say about our country?” Altman said.
How many more immigrants are vulnerable to “double punishment” is hard to pin down. One estimate comes from 2017 Cato Institute policy brief,This report used data from the Migrant Policy Institute from 2015, which was extrapolated from a 2012 Department of Homeland Security report to Congress. The Cato report’s estimates of the total noncitizen population with criminal legal system involvement “vary widely, from about 820,000 according to the Migration Policy Institute to 1.9 million according to Immigration and Customs Enforcement (ICE).”
According to a 2020 Cato Institute analysisIn 2018, 83,698 undocumented and 71,472 legally documented immigrants were incarcerated in U.S. prisons. This is a significant proportion of the U.S. prison population. Some of these immigrants could be vulnerable to being detained and deported by ICE upon release. It is unknown how many of these over-documented immigrants are currently in prison. 600,000People who are released from prison each year are noncitizens and therefore susceptible to deportation. According to ICE, an estimated 6,347 criminally involved immigrants were held by ICE in 2022. This is a decrease overall, but it reflects the fact that ICE detained 6 347 of them. another Syracuse University report “[m]Any [with]only minor offenses, including traffic violations.”
Altman also notes that overall, detention numbers are lower than they were at their height under the Trump and Obama administrations, “they are still up significantly from where they were at inauguration (from 15,000 to 23 or 24,000) and the number of immigrants under surveillance programs the administration refers to as “Alternatives To Detention” have skyrocketed.
What happened to the new way forward?
It was first introduced in the 117th Congress by U.S Rep. Jesus “Chuy” Garcia (D-Illinois), there was unityMany immigrant advocates believe that the New Way Forward ActThis is also the best approach to eliminating the system’s racist and nativist biases. According to the Immigrant Jud Network, only 7 per cent of U.S. citizens are Black. However, Black immigrants make up 20 per cent of people who face deportation. “criminal” grounds. The act repeals certain of the most burdensome aspects of the Illegal Immigration Reform and Immigrant Responsibility ActIIRIRA 1996, which is largely considered a remnant from the “tough on crime” era that fueled destructive “war on drugs” policies.
Among other things, the New Way Forward Act would remove drug possession as grounds for deportation; and end mandatory detention for people who are caregivers or categorized as “vulnerable,” which could mean pregnant, younger than 21 or older than 60, or other criteria laid out in the bill’s definition section (102 (2) (b) (7)). It would allow immigration judges to exercise their discretion so that no one would be completely barred from defending against deportation based on a criminal conviction. It also would prohibit state and local officials from aiding ICE apprehend.
Alejandro Mayorkas, Department of Homeland Security Secretary, provided details in a memorandum dated September 30, 20,21. Guidelines for the Enforcement of Civil Immigration Law that laid out his priorities for deportation — namely, national security, public safety and border security. These were largely repeated in his April 2022. “Prosecutorial Discretion” memorandumTo the 1,100 lawyers in ICE’s Office of the Principal Legal Adviser.
“We had, in the Trump administration, this moment where it was revealed to the world that our immigration enforcement system is built entirely on racism and corruption,” Altman explained. “This is what it’s built on, this is the food that feeds it — and I think there was an opportunity for this administration to come in and say, ‘Look this has been revealed for all of us, let’s reflect on that and actually dismantle it and start again.’ But instead, they doubled down.”
Even with 45 cosponsors the New Way Forward ActThe House Judiciary Committee has stalled the investigation’s Subcommittee on Immigration and Citizenship since March 2021, and has not yet been introduced in the Senate. Altman observed that despite decreasing numbers of interior enforcement detentions and deportations, there has been a steady decline in detentions. “hardening” in rhetoric and in policy under the Biden administration, Congress and the courts pertaining to people who have arrests or convictions on their record. This was most recently reflected by Congress’s narrow focus during the reconciliation debate on only moving Anti-asylum measures. While those amendmentsShe notes that Republicans largely supported the bill. She also points out the slowness of the administration in defending its plans to end Migrant Protection Protocols, also known as Remain In Mexico, and how long the administration allowed Title 42 based mass expulsions to continue at the border.
“It’s tragic, you have these really important pieces of federal legislation that could actually undo so much of this bad prior legislation and bring some measure of justice and proportionality back to the system,” Altman lamented.
The harmful amendments were defeated in a 50-50 vote on August 7. In the current climate, that was the only option “win.” Nonetheless, NIJC tweeted its relief: “In the dark of night Senators tried to pass amendments that would fund the deadly border wall, codify Title 42 mass expulsions that undermine asylum rights, and increase enforcement tactics that destabilize immigrant communities. They failed!”
But the system remains deeply flawed. Altman, on the interior enforcement side, wants people to understand that the majority people double-punished will never be seen by an immigration judge to determine their custody. Mayorkas is the model for low-ranking ICE deportation officers.’s stated priorities, are more often than not the sole deciders. Mayorkas did NOT instruct officers to consider the entire person.’s experience — including the harms they may have experienced before their criminal legal system involvement, or their accomplishments while being rehabilitated for reentry to society — and as a result, the officers don’t take any of it into account. They may not be able to.nderstand or recognize the existence of millionsMany immigrants arrived in the United States as refugees from war-torn countries. They may not have realized that many refugees were resettled by America in low-income areas. This was because they were perceived as competition for scarce resources or as people who could cause conflict and sometimes even bloodshed in oppressed communities. It’s not part of the job description as defined by the DHS secretary, but it could be.
Nate Tam, The Asian Prisoner Support Committee’s co-director, who was born and raised in Cambodia, shared his story TruthoutThe way that the Cambodian community was resettled was an opportunity for criminalization. “The wars in Southeast Asia, Vietnam War, and the Khmer Rouge displaced many people and created a huge refugee wave in the United States between 1975-1979. Many Cambodians were resettled here. ‘High crime’ High poverty areas; what we know is that ‘High crime’ high-poverty neighborhoods are over-policed neighborhoods, and serve as a funnel into the incarceration system.”
As a result, thousands of Cambodians, and other Southeast Asian refugees, have received deportation orders in recent years. Most of these orders are based upon old criminal records. a 2018 fact sheetPublished by The Southeast Asia Resource Action Center
Tam said this is not necessarily “a result of failed U.S. resettlement policy,” but the consequence of opting to do it cheaply. “‘Where can refugees be relocated at the lowest possible cost?’ And Section 8 housing in poor neighborhoods was kind of an easy target.”
Who gets deported is often a coin toss in a Sham System
“The first thing that ICE officers do is look at a person’s rap sheet and, I think, many of them just stop there,” Altman explained. However, digging deeper into police reports can make things worse. A recent NIJC policy briefWe examined the use of police reports in immigration decision making and found that they were not used as intended. widespread recognitionAlthough police reports can be prejudicial and unreliable, many immigration decision-makers consider them accurate as written.
There is a “case review” option on ICE’s websiteAltman stated it for NIJC clients who want to make the most of it.’s been a “coin-toss.” Advocates have been pushing the Biden administration for a meaningful file review process designed to kick in automatically after a certain amount of days in detention. They are also asking for an outside reviewer to conduct the review. They’ve received the usual response from the administration, which is to say, no response at all.
“If you’re in a detention center, without a lawyer and you can’t speak English, that system means nothing. It is.’s a sham,” Altman said. “Your liberty is entirely at the whim of this one deportation officer.”
Biden’s clemency-and-pardon announcement on June 2, 2021 was made by the NIJC. National Immigration ProjectThe Black Alliance for Just Immigration urgedThe president must take an additional step: A release order for the immigration side must be issued to allow for the pardon or clemency of the criminal side. Altman stated that this is “to ensure that clemency is not rendered meaningless through immigration detention and/or deportation.” But this request was ignored.
Altman and other advocates feel that they are finally free after twenty long, frustrating months of this administration.’ve arrived at an impasse. “With every year it becomes increasingly clear that it’s the state legislatures that are going to have to do the heavy lifting to move the system toward justice,” she said, “because it’s not happening at the federal level.”
Look to the States for Action
In June 2021, Illinois passed lawsThis bans police from assisting ICE to make arrests and ends private civil detention centers in the state. Other states are following its lead and starting to pass legislation to protect their immigrant communities against double punishment.
The California legislature is especially being considered. the VISION Act, and advocates far and wide are excited that its potential passage in a populous and politically important state could lead other states to close the prison-to-deportation pipeline, and further decriminalize immigration. The VISION Act would prevent ICE from collaborating to remove people being released from jail or prison. It will not allow immigration status to be used as a determining factor for how people are treated by the courts, state agencies, and local authorities (e.g. whether they receive probation or access mental health services). It would also eliminate discriminatory record keeping and reporting requirements.
The 28th of July will see the Colorado Immigrant Rights Coalition — a statewide membership-based organization of over 80 immigrant, labor, youth, faith and ally organizations — wrote to California Gov. Gavin Newsom urging its passage,While advocating for Californians held by ICE in Aurora (Colorado),
We are devastated that Gabby Solano, a domestic violence survivor, was forced to remain in ICE detention at Aurora. forced sterilizationTo self-deportation. We are deeply shocked by this. Marisela AndradeAs she awaits a decision on her asylum request, a domestic violence victim and human trafficking survivor has been held in detention for six months.
They would have been protected by the VISION Act. The California Coalition for Women Prisoners(CCWP), is doing everything it can to help Andrade,Pam Fadem, a long-standing CCWP member on Andrade, is appealing the deportation of this person.’s support team. This includes the circulating of a petition seeking Governor Newsom’s pardon for her.
The VISION Act would have protected Alex Murillo (a U.S. Navy veteran, father to four, and co-founder of Unified U.S. Deported VeteransVISION Act activist, who was recently repatriated from Mexico after an 11-year exile. Since 1996, Murillo’s IIRIRA legislation was passed, an estimated 94,000 veterans from the United States have been deported.’s group is committed to bringing them home.
The VISION Act would’ve protected Cambodian-born Phoeun YouAfter spending 26 years in prison for a murder he committed at the age of 20, he was released from San Quentin State Prison in January by Governor Newsom. He was then transferred by California Department of Corrections and Rehabilitation into custody by ICE on his release day. August 16, ICE deportedYou can travel to Cambodia. The VISION Act would still provide protection. Salesh Prasad, a queer man who fears discrimination if he is deported from Fiji. Both men sought Newsom’s pardon as they tried to avoid deportation, just weeks before the California State Senate considered the VISION Act. Newsom can still pardon You, and bring him home from the only country he knows. A fundraiserThis site was created to assist You Cambodia
Further Criminalization after the Fall of Roe v. Wade
Alejandra PablosArizona-based abortion doula, and immigration activist, who spent two years (2011 to) in ICE detention. and is herself always at risk of deportation. Now that Roe v. WadeShe is now in danger of being beaten by the state.
“How interesting that all of my identities have been criminalized,” she told Truthout.
In 1996, Bill Clinton, then-President, criminalized immigrant communities by signing IIRIRA with his presidential pen. The VISION Act would reverse a lot of it, and that’s why Pablos, vulnerable as she is to capture by ICE, says it’s worth the risk of supporting.
“Passing [the VISION Act] could be so instrumental … what does the vision look like? We want people home. We have all the tools.’re ready to take care of one another, we don’t need to be incarcerated,” Pablos said. “I feel like it’s a bigger risk if I don’t speak up. We’re not even asking for citizenship anymore, at least not us, we’re asking for decriminalization.”
She’s aware that her life and her liberty could be interrupted again and she could be dragged back into the “crimmigration” dragnet, but she keeps those thoughts at bay.
“I really can’t grasp what it would mean for them to come knock on my door, pick me up because of my abortion work or because of my very out-loud and unapologetic denouncing of ICE,” confessed Pablos. “I’m always assessing risk: Am I willing to go to court for this, to face a judge in a court that is historically unjust, am I willing to defend this?”
“I am, because I know what side of history I’m trying to stay on,” she said.
Advocates point out that California’s passing of the VISION Act could have a ripple impact.
“I understand the concern about state-by-state approaches,” Altman said. “Ideally, the needed changes should happen through federal legislation, and absent that, Biden could make bold, affirmative protections through TPS [temporary protected status], or through more expansive pronouncements or the use of advanced parole mechanisms, or other combinations of programs. None of that has happened.”
“Passing the VISION Act in California sends a message to the federal government: This is how you move toward justice in the immigration space; this is what this very important politically progressive state was able to do to protect its immigrant communities from the federal government’s failing to do so,” Altman said. “The hope is it becomes a trend and eventually we can reach the tipping point where the federal government feels they have to respond.”