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How the government became the single biggest employer of unauthorized immigrants

Immigrants held in a private prison in Texas.
Immigrants held in a private prison in Texas.
Al Henkel/NBC NewsWire/Getty

A horrifying story in the New York Times reveals that tens of thousands of immigrants in federal and privately-run detention centers are being used as cooks and janitors — often being paid $1 or less for as much as eight hours of work a day.

At least 60,000 detainees have been used as cheap labor while they wait for an immigration court to hear their case. Many of these detainees will ultimately lose their immigration court cases — which determine whether someone has a claim to legal status or not — and eventually get deported from the country. As ACLU lawyer Carl Takei told the Times, "This in essence makes the government, which forbids everyone else from hiring people without documents, the single largest employer of undocumented immigrants in the country."

But as the article points out, about half of all immigrants who get sent to immigration court end up winning their cases — the immigration judge rules that they're already here legally, or that they are eligible to apply for some form of legal status. It's not clear how many of those immigrants are held in detention before their hearings, and how many are able to return home on bond (sometimes with an ankle bracelet or another form of monitoring) to await their day in court. But it's entirely possible that tens of thousands of legal immigrants are working for a dollar a day in immigration detention facilities, only to get released when they finally go in front of an immigration judge.

If immigration courts processed cases efficiently, this would be far less of a problem. But they don't. As of March 2014, according to the Transactional Records Access Clearinghouse, the average immigration court case took 516 days to complete — almost a year and a half. And cases take even longer to be processed when the immigrant ends up winning the case: an average of 772 days, or over two years. Again, it's not clear how many of those immigrants spend all two years in detention — but many of them may. One of the legal immigrants profiled in the Times story was detained for nineteen months — making $1 a day in the detention-center kitchen — before his case was resolved.

And recently, the problem's gotten even worse. For the last six weeks, immigration courts across the country have been dealing with a meltdown in their computer systems, which has prevented them from adding new cases to the docket. Immigration judges think this is having a particularly bad impact on immigrants in detention, who aren't getting the chance to schedule hearings to determine if they're eligible for bond.

The problem is that immigration courts are dramatically under-resourced. Since 2009, the immigration court backlog has grown by 42%, with only 7% more immigration judges getting hired to handle those cases. And half of all immigration judges will be eligible to retire at the end of this year. Congress has been happy to give more money to the agencies dealing with immigration enforcement, which are part of the Department of Homeland Security, but immigration courts are operated by the Department of Justice — and Congress hasn't been too enthusiastic about funding them. In fiscal year 2012, the government spent $18 billion on immigration enforcement; it spent just over $300 million on the agency responsible for immigration courts.

So the federal government is putting more effort into rounding immigrants up and putting them into detention than it is into processing their cases in court. And it's often resistant to letting them leave detention while they're waiting to see a judge. This creates a huge pool of vulnerable immigrant detainees, who can then be used as cheap labor by private detention companies or the government itself.

The Times report is horrifying. But the problem with immigration detention isn't just the abuses it highlights. It's the failures of the system that make it possible for those abuses to occur at all.

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