A bill (.pdf) that would give Homeland Security the authority to detain immigrants indefinitely, filed by U.S. Rep. Lamar Smith, R-Texas, will be heard today in the House Judiciary Committee.

A press release issued by Smith says H.R. 1932, the “Keep Our Communities Safe Act,” provides a statutory basis for Homeland Security to detain — as long as necessary — specified dangerous immigrants under orders of removal who cannot be deported. The bill is currently co-sponsored by Republican Florida Congressmen Jeff Miller and Dennis Ross.

Joanne Lin, the legislative council for the American Cilvi Liberties Union, said during a National Immigration Forum phone conference that Smith’s bill aims to do five things:

  • Strip away key parts of two Supreme Court decisions that ruled that an immigrant detainee cannot be held for more than six months even if a deportation order cannot be carried out.
  • Give Department of Homeland Security the authority to indefinitely detain people for petty offenses like writing a bad check.
  • Allow Homeland Security to lock up immigrants for years without a bond hearing in front of an immigration judge.
  • Mandate that Homeland Security detains people for crimes committed predating 1988.
  • Strip judicial review of immigration detention cases, not allowing detainees to file habeas petitions in a U.S. District court where they are detained.

Lin argued that Smith’s bill is unconstitutional because it authorizes the indefinite detention of a variety of immigrants without providing procedural protections, and that it is wasteful because it would use $45 million a year in tax dollars for more detention. Lin also said it is unnecessary because we are at historically low crime rates, and because existing federal and state law allows for the civil detention of mentally ill immigrants, permits authorities to quarantine immigrants, and provides for the detention of immigrants who pose a threat to the U.S.

Annie Sovick — advocacy council to the Refugee Protection program with Humans Rights First, which represents asylum seekers who look for protection from persecution in the U.S. — said that because of inadequate due process protections that currently exist in the immigration detention system, many asylum seekers have been held in immigration detention centers for months or even years, even after the government found they posed no flight risk or danger to others.

Sovick added that Human Rights First believes that the U.S. needs to improve its immigration detention system to make it more cost-effective and consistent with human rights, strengthening protections under current law to defend due process and individual rights.

A 2009 Human Rights First study shows that between 2003 and 2009, the Department of Homeland Security detained 48,000 asylum seekers in detention centers at a cost of $300 million.

Sovick said that Smith’s bill has provisions that have nothing to do with safety or flight risk and that the impact would actually be felt by asylum seekers.

Denise Gilman, co-director of the Immigration Clinic of the University of Texas Law School, says H.R. 1932 extends and expands indefinite and mandatory detention without review while attempting to strip the courts of the ability to individually review a case. She adds that the Supreme Court has said that indefinite detention is unconstitutional.

According to Immigration and Customs Enforcement (aka ICE) data provided by the National Immigration Forum, the largest number of detainees for fiscal years 2009, 2010, and 2011 are Cubans. Since the U.S. government has no diplomatic relations with Cuba, they cannot deport immigrants to Cuba after they finished their criminal sentences, leaving them in a post-removal limbo. (Read the full chart below.)

According to Lin, because the sweep of Smith’s bill is vast, it would touch broadly and affect immigrants coming from Latin America, Africa, and Asia.

Smith’s bill, Gilman explained, creates new categories of detainees without review and prolongs detention of people in already long removal proceedings.

When asked if the Smith bill benefits the private prison industry, Gilman said that, intentionally or not, any legislation that extends detention would benefit the private prison industry.

“Whenever there is an increased length of detention, there is an increased need for beds,” Gilman said, “and that promotes the intervention of the private prison industry.” Broward County’s Southwest Ranches and Miami-Dade County’s Florida City are both currently partnered with leading private prison industry corporations and competing to build an ICE immigrant detention center.

Gilman concluded that if passed, Smith’s bill would be challenged, leading to a long and expensive legal battle.

The ICE data:

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