Immigration Attorney Argues Against Locking Up Migrants Accused Of Violations

The average number of immigrants held in U.S. detention centers each day reached 45,000 in 2019, according to data from U.S. Immigration and Customs Enforcement. That number is expected to rise to 54,000 per day in 2020.

The next stop for detained immigrants could either be court or a one-way ticket out of the country.

César Cuauhtémoc García Hernández, an immigration lawyer who teachers law at the University of Denver, argues against the mass detention of undocumented immigrants in his new book, "Migrating to Prison: America's Obsession With Locking Up Immigrants."

Detaining undocumented immigrants is not a new trend that began under President Trump, he says. In 1970, prosecutors charged only 575 people with an immigration crime, Hernández writes in the book. In 2013, almost 98,000 people were facing immigration charges.

Former President George W. Bush adopted a more hardline immigration approach toward people who were potentially violating immigation law, which resulted in more arrests, Hernández says. The number of people who were arrested for immigation law violations rapidly increased and reached a record under former President Obama.

“Under President Obama, we had more people inside immigration prisons than ever before in the history of the United States until President Trump,” Hernández says. “And so there certainly has been an increase, but I think that when we have one historical record surpass another historical record, we have to describe that as a trend, not as a parting of ways.” 

One of the main differences under Trump is his zero-tolerance policy for undocumented immigrants who commit crimes, he says. Hernández argues that immigrants should be held to the same standard as people who were born in the U.S.

“We need to hold immigrants — whether they're documented or not — to the very same standards that we hold [to] people like me who were born into their citizenship,” he says. “This claim that some people are on worse footing or should be on worse footing because they happen to be born outside the United States, I think it takes a very narrow view of belonging in this community that we call the United States.”

On the idea that having permission to be in the U.S. doesn’t guarantee people freedom 

“There are lots of people who have green cards. They have permission to be in the United States, to live and work here, as long as they like. And for one reason or another, they violate immigration law, or to be more accurate, the federal government thinks that they violated immigration law. They can find themselves locked up and put into the deportation process. And that doesn't matter. You don't get saved from that just because you have kids or because you served in the U.S. Army.

“Immigration law is far too complicated for any on-the-ground official to really have a clear sense of when it is that somebody is going to be deported. The reality is that there are lots of legal claims that people can make, but only if they have a lawyer. And the reality is that in immigration courts, there is no right to appointed counsel, which means that you get to have a lawyer by your side as you're making your last arguments to stay in the U.S., but only if you can pay for one.”

On why the number of people charged with immigration crimes has increased 

“Toward the end of the Bush administration, the federal government decided that they would take a hardline approach to people who are potentially violating immigration law. And the clearest way of doing that in the U.S. legal system is to throw people into the criminal justice system. So it's been a crime since 1929, in fact, to enter the United States without the government's permission or to do that after having previously been deported. But the reality was ... that for most of that time, federal prosecutors didn't prioritize immigration law violations. They had a bigger fish to fry. And that's how they were spending their limited resources. And that started to change toward the end of the George W. Bush administration that continued under the eight years of President Obama and certainly hasn't shifted gears under President Trump.”

“All of us mess up, but it's not because we're U.S. citizens or not U.S. citizens. It's just because we're people."

César Cuauhtémoc García Hernández

On the conditions inside immigrant detention centers 

“As a lawyer, you certainly have a privileged access to these facilities. But the hard part is that many people inside these facilities don't have the money to hire a lawyer, so they're hoping to find somebody who's gonna work for free, work pro bono. And certainly that does happen, but that doesn't mean that the number of people who are going into these facilities is limited. When you do go into these facilities, what you realize is that they look a whole lot like a prison. And ICE [U.S. Immigration and Customs Enforcement], for example, likes to call them detention centers or service processing centers. But when you go through layers of barbed wire fencing, when you go through metal detectors and ... when they're steel doors that that closed shut behind you, it feels a whole lot like a prison. It looks a whole lot like a prison. And you can call it whatever you like. But for the folks who can't get out and who have a hard time finding people who are willing to come in, it certainly feels like they're in isolation in the way that most of us think prisons do.”

On why he doesn’t believe we should lock up immigrants

“I think anytime that we are contemplating locking up people, depriving them of their liberty, we have to ask why, what it is that we're trying to accomplish by doing that and can we accomplish it equally well or better without depriving people of their liberty? And I think in this context in particular, there are some compelling reasons to suggest that locking up people doesn't actually promote the rule of law. It doesn't actually make any of us safer. And on the contrary, given the difficulties with accessing legal representation while locked up and going through the immigration court process, locking up people, actually I think, has the effect of subverting the legal process.”

On how he would solve the problem 

“ICE, for example, in 2017 spent $2.7 billion on its prison network. We should take that money and redirect it. Direct it to paying for lawyers, direct it to paying for social workers who are going to make sure that people who are going through what is inherently a high stress process have some amount of stability in their lives, making sure that they understand the process, but also how to get there.”

On the message sent to immigrants who violate the law and why it should change

“First of all, we're talking about a very diverse group of people, including people who have every right to be here under the law. We have a legal system that allows for people to come to the U.S. and claim asylum if they fear for their lives, if they're sent back to whatever country they're they're fleeing from. We have other folks who are locked up who have green cards. I spoke to a gentleman ... and he was born in Mexico, not far from where I was born in south Texas. We both went to school in south Texas public schools. And after high school, I went off to college, but he went off to the U.S. Army. He joined the Army and got sent to Iraq. And one day his tank got blown up by an IED and he got sent back to the U.S. and to south Texas. And he didn't get the care that he needed.

“And so he turned to self medicating through drugs, unfortunately, and eventually the police caught up with him. And my family's law firm eventually came across him through his parents, because one day he just stopped showing up for court dates. And the reason was that ICE had picked him up and sent him into an immigration prison. So this is somebody who we trusted with literal tanks. This is somebody who volunteered to defend the United States, to put his life on the line and came very close to actually losing it. And then because of one bomb and a poor, an insufficient mental health care system and some bad decisions, he was locked up in an immigration prison and facing the possibility of deportation. So this is not a homogenous group that we could just talk about in broad terms. These are very complicated, contradictory individuals.

“He developed a criminal history because he messed up after going through some trauma in Iraq and defending the United States. His moral claim to the United States isn't weaker than mine is simply because my mother happened to be in Texas when I was born and his mother happened to be about 10 miles south of where I was born.

“All of us mess up, but it's not because we're U.S. citizens or not U.S. citizens. It's just because we're people. I would like to see an immigration law enforcement system that takes into account the fact that we're all fallible creatures. And if we're out looking for only the extraordinary migrants to welcome into our community, then I think we need to start by looking inward first and asking you how extraordinary, how perfect are those of us who are making those requests?”

Emiko Tamagawa produced and edited this interview for broadcast with Tinku Ray. Samantha Raphelson adapted it for the web. 

By César Cuauhtémoc García Hernández

I grew up in South Texas, four hours south of San Antonio in the southeast corner of the state, where the Rio Grande meets the Gulf of Mexico. It’s hot, poor, and overwhelmingly Mexican, and in the 1980s it was a hub for newly arrived migrants. In particular, Central Americans fleeing civil wars made their way to the Rio Grande Valley by the tens of thousands. Working with Congress, the Reagan administration responded with money, federal law enforcement officers, and immigration prisons. The Valley became an immigration battleground.

In the farmworker housing project where my family lived, Reagan administration directives were not distant policy debates. They were life-and-death developments about people we knew: relatives, friends, friends of friends. As a child, I experienced the rise of a security-focused immigration policy mostly through overhearing adult conversations. Sometimes it took the form of a tío, an uncle, sleeping on a couch as he rested on his way up north. Other times it was my parents worrying about whether my grandfather’s English was good enough to get him across the border. In the days before passports were required to get into the United States, his U.S. citizenship didn’t guarantee he could return.

By the time I was a newly minted lawyer, I thought I was familiar with the region’s role in the story of U.S. immigration, but it wasn’t until I drove down Farm-to-Market Road 510 for the first time that I entered a part of the immigration-law world that I hadn’t known existed.

Every year, thousands of mostly white retirees take the out-of-the-way two-lane FM 510 to the Laguna Atascosa National Wildlife Refuge to see the animals: the snow-white egrets, the redhead ducks, the bobcats, even the ocelot—recently hovering near extinction—making their homes in the thickets of native bamboo. At the same time, migrants unwillingly travel the same route. Forced onto buses emblazoned with the Department of Homeland Security’s seal—an eagle clutching an olive branch in one talon and arrows in another—migrants peer out from behind dark windows and through metal bars. It’s a prison on wheels delivering migrants to the Port Isabel Detention Center, a 1,200-bed facility tucked between the wildlife refuge, a crop-duster airport, and the salty edge of the Gulf of Mexico.

The wild beauty stops at the facility’s guardhouse, where standard-issue prison architecture begins: chain-link fencing, concertina razor wire, layer after layer of security screenings, and steel doors. Inside, migrants are handed jumpsuits color-coded to reflect their security classification: yellow for people who present a low security risk, blue for medium, and red for high-risk migrants. From year to year or facility to facility, the colors change, but the rationale for them doesn’t: there’s no one here who doesn’t present a risk. Walking through metal detectors, with the heavy doors clanking shut behind me, accompanied by a guard and constantly watched through surveillance cameras, even I—an attorney waiting to meet a client—seem to pose a risk.

After days or months there, the migrants are brought into a small, windowless room and ushered onto long benches. At the front of the room, a judge presides over dozens of hearings five days a week. When I made trips to Port Isabel to represent people who were locked up there, Judge Howard Achtsam ran things. Migrants called him El Diablo—The Devil—because he deported just about everyone who walked into his courtroom. These days El Diablo works out of a nearby immigration court, but things remain tough for the Port Isabel detainees. Adding to the misery of confinement, almost all have to make their case for staying in the United States without a lawyer. In civil immigration court, there is no right to a government-paid lawyer. If you have the money, you can hire one. If you don’t, you’re out of luck.

Gerardo Armijo was one of the few who did have a lawyer—my brother, who, along with our eldest brother, heads the law firm I’ve been part of since my days as a new lawyer. I have a lot in common with Jerry, as his friends call him. We were both raised in the Texas borderlands about an hour west of Port Isabel. We were born into a community that is almost entirely Mexican. We are both Spanish speakers whose families have traversed the border.

There we part ways. I was born in Texas; Jerry in Mexico. I’m a U.S. citizen; brought to the United States by his mother when he was just eight months old, Jerry is a permanent resident—the final rung before citizenship, but crucially a step below the citizen status I was born into. Despite that, the United States is in his heart. While I finished high school and went off to the Ivy League, Jerry joined the Army. While I studied in plush libraries, he walked the streets of Iraq.

Patrolling in a tank one day, Jerry lost several friends to a bomb explosion. He survived, but the attack took its toll. “I got back to the Valley, and I was messed up,” he told me, his soft-spoken words revealing a soul torn between patriotism and trauma. When he returned to his South Texas home, the trauma proved too much for the Purple Heart veteran, and he turned to drugs. Jerry was convicted of possession and placed in a special state-run rehab program for veterans.

The combination of drug treatment, job training, counseling, and lenient sentencing for crimes was meant to get vets back on their feet—a thank you of sorts for their military service—and Jerry was meeting all the program requirements. Then, one day, he suddenly stopped showing up. No one, not his family, his friends, not even his lawyer, knew where he was. It turned out that he had been arrested by ICE and sent to the Port Isabel Detention Center. No one had bothered to tell his lawyer or the judge overseeing the rehab program.

Cases like Jerry’s highlight how far reaching immigration imprisonment has become. His military service proved his love for the United States, but to immigration law, it’s the passport, not the heart, that matters. The direct link between Jerry’s warzone trauma and his criminal activity makes him unusual, but not unique. No one is sure how many veterans have been thrown into immigration prisons because of crimes linked to his experiences in combat. War affects citizen and noncitizen soldiers alike. For migrants who join the military, though, combat-induced mistakes shred the hero status veterans return home to and turn them into what politicians—both Democrats and Republicans—like to call “criminal aliens.” In this, Jerry is indistinguishable from many people detained across the immigration prison network: longtime residents of the United States convicted of a crime who end up inside an immigration prison, waiting while they fight the government’s efforts to deport them.

Copyright © 2019 by César Cuauhtémoc García Hernández. This excerpt originally appeared in Migrating to Prison: America’s Obsession with Locking Up Immigrants, published by The New Press and reprinted here with permission.