Greater oversight is needed in shrouded immigration courts

The Globe’s three-part series, “Justice in the shadows,” shined a bright light on the system that has been set up to process tens of thousands of immigrants who are rounded up for the crime of being in this country without proper documentation. Unlike other crimes, this one doesn’t come with the usual set of rights and guarantee of procedural fairness: In setting up mechanisms to deal with non-Americans, the United States seemed to go out of its way to insist that its highest principles apply only to its citizens and properly documented visitors. Far too often, families are torn apart and detainees are shut off from legal help and communication with loved ones.

Taxpayers pay billions of dollars for this shadow world, but based on extensive reporting by the Globe’s Maria Sacchetti and Milton Valencia, it does little to enhance security or keep people from entering the country without proper documentation. More daylight is needed, not only to address incidents of injustice, but also to police instances in which immigration authorities lack the legal levers necessary to keep dangerous people off the streets.

According to the Globe’s investigation, Immigration and Customs Enforcement — the federal agency known as ICE — detains more than 10,000 immigrants every day who are in the country illegally, but have committed no other crime. Once apprehended, they can be held for weeks and sometimes months in jails where they have fewer rights than criminals. There are no guaranteed hearings prior to lockup and no guaranteed access to counsel. Some people are eventually deported. Others remain in custody, unable to get the medical treatment they need, and some die under agonizing conditions.


The Globe also found that the system careens from too harsh to too lenient. ICE releases thousands of criminals — including murderers — back onto US streets because their home countries won’t take them back.

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For years, many Democrats and Republicans talked about the need for immigration reform, but were thwarted by political extremists who decried any show of tolerance or leniency. The message sent by Latino voters in the recent presidential election could change that. When Congress takes up comprehensive immigration reform, as leaders of both parties have said they will do in the spring, detention reform should be included.

The American Civil Liberties Union, which is pressing the case for detainees across the country, believes the following elements, among others, should be part of any comprehensive immigration reform legislation:

  Detention should be the last resort. An alternative process should be put in place to deal with illegal immigrants, if a person is not a danger to society or a flight risk.

  Before any illegal immigrant is locked up, the government must justify the case for detention at a bond hearing.


  Judges weighing deportation orders should have the discretion to consider individual hardship on a case-by-case basis.

But the law doesn’t have to change for the system to improve. The Obama administration could use its discretion to review the necessity of holding people indefinitely, and splitting up families. Without any change to the law, the government could require a bond hearing to establish if the person is dangerous or a flight risk; if not, that person could be released, pending further action.

Most immigrants who are in this country illegally are not dangerous criminals. Many have lived here for a long time. They have hopes, dreams, and children. Their goal is to become citizens of a country they believe offers the greatest opportunities. Giving them a way to stay in the country legally, with a path to citizenship, is one goal of comprehensive immigration reform. But making sure they are treated fairly and humanely when and if they are held for lacking documentation should be another goal. And Congress should give ICE the power to hold dangerous criminals even if their own countries won’t take them back. The vagaries of the detention system are, at bottom, urgent testimony of the need to modernize the whole way that illegal immigration is handled in this country.