Behind the Headlines: Immigrant Detention in the Blocked Border Security Bill

In Washington, a proposed border bill — which would be the most significant updates to immigration law since 1996 — looks to be scuttled for now, but the issue of the border isn’t going anywhere.

Let’s take a more detailed look into how the bill proposed to deal with increasing numbers of arriving asylum seekers: what it gets right and what looks bound to make a bad situation worse.

What This Bill Gets Wrong

As currently written, the border bill allocates nearly $8 billion in emergency funding to Immigrations and Customs Enforcement, including more than $3 billion for increased detention capacity. The proposal would fund 50,000 immigration detention beds in a sweetheart deal for the private prison operators that make up 90% of the immigration detention system.

The U.S. already has the world’s largest immigration detention system, massively expanded since President Clinton passed laws in 1996 making indefinite immigration detention mandatory for many people fighting deportation. And this strategy doesn’t work to deter people fleeing persecution: almost 30 years later and with tens of thousands more immigration detention beds in use, we are seeing record numbers of arrivals.

By spending more on detention, the U.S. government would double down on supporting deplorable and deadly conditions that include inadequate access to food, water, and medical care, as well as instances of violence, ill treatment and abuse by officials, including sexual violence and the use of prolonged solitary confinement.

Why It Matters

While the bill’s progress is currently stalled in Washington, proposed changes to the immigration system will remain a top issue into the 2024 presidential election. Voters in Iowa and New Hampshire ranked immigration nearly as important as the economy when asked how they decided how to vote during the presidential primaries.

A Better Solution

U.S. immigration courts are drowning, with a record three million cases pending, just over one million of which are asylum cases. Roughly 50% of asylum cases are granted, but it takes the courts an average of three and a half years to decide them. Because there is no government-funded right to counsel in immigration court, judges waste precious time and resources educating people on the basics of how to file a claim and litigate their own case. Studies show that legal representation for immigrants increases court efficiency by screening out claims that are unlikely to win, eliminating unnecessary adjournments, and ensuring higher rates of appearance. A right to counsel in immigration court hearings would allow legitimate cases for protection to be quickly identified and granted, enabling quicker resolution of all cases.

The new bill would guarantee legal representation in immigration court for unaccompanied children under the age of 14, a provision that should be expanded for all. Pragmatic solutions to fairly and efficiently adjudicating asylum adjudication are possible. More detention isn’t one of them.