Only seven days into President Joe Biden’s administration, and his immigration agenda has already hit multiple roadblocks. His 100-day pause on deportations has been blocked by a Trump-appointed federal judge, and Republicans are vowing to slow-walk his nominee to lead the Department of Homeland Security over objections to his record on immigration.
Which is why immigration advocates were stunned on Tuesday to see Biden miss an opportunity to enact long-promised reform to immigrant detention with no risk of such interference.
“It’s unacceptable for the Biden-Harris administration to exclude immigrant prisons from today’s executive order,” Laura Rivera, an immigration attorney for the Southern Poverty Law Center’s Action Fund and director of the SPLC’s Southeast Immigrant Freedom Initiative, said on Tuesday, after Biden signed an executive order ending the use of private prisons by the Department of Justice but leaving those operated by the Department of Homeland Security unscathed.
“The very concept of detaining immigrants is rotten to its core,” Rivera continued. “This is an irredeemable, profit-driven racket that the Biden-Harris administration must address.”
Biden has largely made good on his ambitious “First Day” agenda on immigration: unveiling the U.S. Citizenship Act of 2021, which would amount to the most comprehensive reform of the immigration system in a generation; signing everal executive orders on his first day in office ending President Donald Trump’s Muslim ban, fortified protections for DREAMers, stopped construction of the border wall and put a hold on deportations for 100 days.
But as moves to implement his immigration agenda have fallen short of their hopes—or fallen victim to a federal judiciary largely molded in Trump’s image—advocates told The Daily Beast, they’re pressuring Biden to use more of the powers at his disposal. Across the spectrum of immigrant rights groups and advocates in the hours after Biden signed an executive order phasing out the use of privately operated prisons by the Department of Justice—with no parallel order for private prisons run as immigrant detention centers by the Department of Homeland Security and lower-level contractors.
“It’s silent on what may or may not transpire with ICE facilities,” Susan Rice, director of the U.S. Domestic Policy Council, told reporters on Tuesday. “The Obama-Biden administration took steps to end renewing of contracts for private prisons, the Trump administration reversed that, and we're reestablishing it.”
To organizations that have fought on behalf of people held in private detention facilities, where they say that the incentive to minimize costs comes at the price of human dignity and safety, the lack of an apparent plan for the entire carceral system is unconscionable.
“Whether called ‘jail,’ ‘prison,’ or ‘detention center,’ these systems share the same unjust design: to incarcerate people of color, profit off of them, and strip them of their dignity,” said Silky Shah, executive director of Detention Watch Network. “The Biden administration must now address the private prison industry’s toxic relationship with the Department of Homeland Security.”
Advocates for immigration reform point to the relatively minimal impact that Biden’s executive order will have on the broader criminal justice system compared to what a similar order could have on immigrant detention. In 2017, just 15 percent of inmates in federal custody were held in private prisons, according to the Sentencing Project, compared to nearly 80 percent of people held in immigrant detention being held in such facilities.
Many private detention centers are operated under the supervision of both the Justice and Homeland Security Departments, or are contracted from Homeland Security’s Immigration and Customs Enforcement (ICE) to a state or local entity that, in turn, subcontracts to private prison operators. In effect, this means that as Justice eventually removes inmates from private prisons, DHS detainees will remain behind, sometimes held in the same exact facilities from which U.S. citizen inmates are being removed on humanitarian grounds.
Private prisons—which became a billion-dollar industry as the Trump administration vastly expanded the immigrant detention system—have drawn steep criticism from human rights advocates, who point to the dehumanizing conditions in many of the facilities, particularly those intended for undocumented immigrants.
“These private prison companies have the incentive to minimize their costs at the disregard of human suffering,” said said Naureen Shah, senior advocacy and policy counsel at the American Civil Liberties Union, “and ICE just gets to point their fingers back at private prison company, saying, well it’s not us, it’s them. That’s sickening.”
But the deeper illness of ICE detention, advocates told The Daily Beast, is the fact that these people are trapped in prison in the first place, no matter who is running it.
“If we are to eradicate money-driven incentives that lead to higher incarceration rates, we must address its presence in all prisons and jails,” said Nicholas Turner, president of the Vera Institute of Justice. “Many federal immigration detention centers continue to be run by private companies. The federal government is also responsible for creating perverse incentives for local governments by issuing contracts for local jails to hold imprisoned people for ICE and the U.S. Marshals. Even the U.S. Department of Agriculture underwrites rural jail construction.”
Asked ahead of a public briefing on Tuesday announcing the executive orders about whether the executive order covered undocumented immigrants, originally had no idea, before telling The Daily Beast that the scope of the plan was limited to the Department of Justice, with no plans for a parallel order on immigration on track for announcement. Since then, the White House has indicated that they are considering signing a similar executive order for the Department of Homeland Security, according to Politico.
During the 2020 campaign, Biden vowed that he would “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants” if he were elected. That promise—as well as others, including a “Day One” agenda that included eliminating the “remain in Mexico” policy on those seeking asylum, sending legislation to Congress that would create a roadmap to citizenship for undocumented immigrants, and create a task force to reunify migrant children separated from their families under the Trump administration’s “zero-tolerance” policy—was intended to counter skepticism of the Obama-Biden administration’s record on detentions and deportations, which eclipsed even Trump’s in its efficiency.
To Naureen Shah of the ACLU, the setbacks are proof that Biden needs to be more aggressive—not more conciliatory.
“We want them to be bold,” Shah said. “The battles over immigration are going to be fought certainly in courts, but also in sheriff’s offices and county boards and city councils and state legislatures, and the impact the Biden administration has on those debates is huge. The bolder it is at the national level, the more they empower state and local officials to get out of the immigration enforcement business.”
“That is the power that only they have,” Shah continued, “and we want them to use it.”