Trump Wants to Detain More Immigrants. He Could -- With California's Help

When his three young children woke up in their small house in Oakland one morning a few weeks ago, Maguiber wasn’t home. That wasn’t so unusual. The 27-year-old dad worked long hours, juggling three different jobs cleaning in two hotels and a restaurant.

But then the children’s mother told Kevin, 8, Gabriela, 4, and Christopher, 2, that their father had been taken away to jail. Before dawn that morning, two officers had knocked on the door. They said they were investigating a hit-and-run, and they asked to see Maguiber. (His attorney asked that we not use his last name until his immigration status is resolved.) He walked out to the driveway, while Yibi Heras, his wife, watched from the door.

It was only after Maguiber took out his car registration that he realized the officers were Immigration and Customs Enforcement agents, not local police, she said. There had been no hit-and-run. The agents handcuffed Maguiber and put him into their SUV. They told Heras that her husband could call her later, after he had been booked into immigration detention.

In January, President Donald Trump signed an executive order greatly expanding the categories of undocumented people that law enforcement officials should prioritize for deportation. Since then, thousands of people have been detained around the country.

Trump has promised to deport 2 million to 3 million people this year alone. For comparison, President Barack Obama deported 2.75 million people over the course of eight years.

In order to deport people, the government typically must detain them first. But if the system is already at capacity, where will all these new detainees go? A KQED investigation found the government can likely ramp up detention capacity quickly -- and California's jails could play a key part.

The new president has inherited a deportation system already straining to remove historically high numbers of people -- though illegal immigration is just a fraction of what it was 10 or 15 years ago. On one typical day in November, 40,875 people in the United States were being held in detention -- though ICE is budgeted for just 34,000 detention beds, according to Immigration and Customs Enforcement data. ICE officials declined repeated requests to comment or answer questions for this story.

In a recent memo that fleshes out President Trump’s executive order, Homeland Security Secretary John Kelly specified that the default for the new administration will be detention, rather than allowing people to be released, for example, on bond or with an ankle-worn GPS monitor, while they await their day in immigration court.

That wait can take years, because immigration courts are so understaffed and there has been an increase in asylum cases. On average, all immigrants, detained and not, were waiting for 677 days as of January 2017 for their case to be resolved in immigration court. In California, the average was 718 days.

The Detention of Maguiber

Maguiber was born in Guatemala and has been living in the United States illegally for about a decade. His one offense (and the thing that may have put him on ICE’s radar) is a recent misdemeanor conviction for reckless driving. His lawyer believes that he may have come to ICE agents’ attention after he was booked or appeared in court.

That morning, Feb. 8, ICE agents took Maguiber to the West County Detention Facility, a county jail in Richmond, California. Like any other jail, its primary purpose is to hold people awaiting trial and inmates serving short sentences for low-level crimes. But Contra Costa County also rents 318 jail beds here to ICE. That makes the West County facility a small part of a vast and growing immigration detention system.

ICE operates the largest federal detention system in the country. In 2015, it held almost twice as many people as the federal Bureau of Prisons, according to the Departments of Justice and Homeland Security. ICE runs its own detention centers in some parts of the country, but mostly it contracts out to private prison companies and local jails.

In California, 16 different jails and private prisons had contracts with ICE, and held 5,269 ICE detainees on a day in late 2016. Nationally, California holds the second-highest number of detainees, after Texas.

Trump’s executive orders are meant to deter people from coming into the country illegally and discourage people like Maguiber, who was previously deported as a teenager, from returning again. Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a think tank that favors restricting immigration, believes that Trump’s plan for stronger immigration enforcement will prevent people from returning to the United States illegally.

“It was necessary to do these executive orders to let these government agencies do their job and do the job that Americans expect them to do, which is to enforce the immigration laws we have,” she said.

But many attorneys say it makes little sense to hold immigrants in prolonged detention. The vast majority, especially when they have an immigration lawyer, do appear for their day in immigration court as required, according to data from Syracuse University’s Transactional Records Access Clearinghouse (known as TRAC) and a study by the University of Pennsylvania Law Review. And attorneys emphasize that immigration detention is not supposed to be punitive.

“It's important to remember that these individuals are not serving time pursuant to a criminal conviction. Most of them have absolutely no criminal history at all,” said Denise L. Gilman, who directs the Immigration Clinic at the University of Texas Law School.

Yibi Heras says her husband is not a criminal. “Like all of us, he has made mistakes,” she said. “But he's not dangerous.”

Heras is working hard to keep life as normal as possible for her children. Maguiber manages to call from jail almost every day, but the children are confused about why he can’t video chat with them as he used to do between his jobs.

Heras said her 4-year-old daughter, Gabriela, asked to move in with her father recently, saying she was ready to go as soon as she gathered up her toys.

California is poised to be a key part of ICE’s detention expansion.

“I think California’s going to be ground zero when it comes to immigration removals during the Trump administration,” said Kevin Johnson, dean of the UC Davis School of Law.

While ICE may have reached the limits of its budgeted detention space, the KQED investigation found that, if new funds are made available, the agency could quickly expand detention to take advantage of idle bed space in jails and private prisons.

Private Detention Companies See Profits in Trump Policies

The majority of immigrant detainees in California and nationwide wind up in facilities run by for-profit companies, according to data from ICE released in December 2016. And, with President Trump’s heightened focus on deportation, these companies are seeing opportunities for expansion and profit.

In fact, the expansion began last year, as the Obama administration sought to respond to a continuing flow of children and families fleeing to the U.S. from Central America. CoreCivic, the GEO Group and Emerald Correctional Management signed contracts in 2016 to open more facilities for immigrant detainees, which will supply an additional 3,087 beds.

“Our financial performance in the fourth quarter of 2016 was well above our initial forecast due, in large part, to heightened utilization by ICE across the portfolio,” CoreCivic CEO Damon Hininger told shareholders.

And in February, executives at the two largest companies, CoreCivic and GEO Group, told their shareholders that they had many empty beds nationally -- totaling 13,700 -- into which ICE could move detainees immediately. (Roughly 500 of those beds are in California.) A vacant 3,000-bed detention center in Texas, owned by Management and Training Corp., could also reopen for ICE.

One reason bed space is available is that the federal government last year determined that private prisons had inferior safety and security, and began phasing out their use. Three private prison companies currently hold contracts with the U.S. Bureau of Prisons for 27,000 beds -- 2,200 of those are in California.

The Trump Justice Department has since rescinded the Obama administration’s decision not to use private prisons for federal inmates. But the number of federal inmates held in private prisons has been declining in recent years, so some of those beds could still become available.

Some advocates question why prisons that were found to be substandard for federal prisoners can be considered safe for immigrant detainees.

“It is [for-profit companies’] desperate interest to keep costs as low as possible, and they do that by skimping on food, on health care, on mental health care and anything else so that they can maximize their profits for every individual detained,” said Gilman, of the University of Texas Law School.

Since 2012, three people have died while detained at the Adelanto Correctional Facility, run by GEO Group in San Bernardino, California. ICE investigators found problems at the facility, including health care delays, poor record keeping, bad communication between staff and failures to properly report sexual assaults.

In a federal investigation into one of the California deaths, inspectors noted that the person who died had waited more than a year to see a specialist, that the high turnover of medical staff led to inadequate care and that a dearth of laboratory services led to delays in treatment.

Last fall, after the Bureau of Prisons decided to stop using private prisons, Homeland Security officials asked an advisory council composed of government officials, attorneys, advocates and private prison executives to examine ICE’s reliance on private prisons. The council's report concluded that despite problems with private, for-profit detention, DHS must continue to rely on it to control costs and “handle sudden increases in detention.”

But about three-quarters of the members who approved the report took issue with that central recommendation. In a dissenting opinion they said the review showed conditions in private prisons were inferior to ICE-run detention, and suggested shifting away from a private prison model. The dissenters also encouraged further investigation to find “the most effective and humane approach,” to detention, including looking at alternatives to physically jailing people.

Tens of Thousands of Immigrants Detained in Local Jails

In the same report, the council recommended that ICE reduce its reliance on another type of facility: local jails.

“County jails are, in general, the most problematic facilities for immigration detention,” the report said.

Local jails, like the one on Richmond, California, where Maguiber is in custody, held 25 percent of immigrant detainees last year, according to ICE. And, despite the council's recommendation to avoid them, ICE is likely to rely more heavily on jails, as it seeks to lock up more people in the deportation process.

“I would expect them to also look at expanding capacity by using space that's not currently used in local jails that are already inspected and certified by ICE to be appropriate for immigration detention,” said Vaughan.

A greater expansion into jails is likely to take place in many states, but California, in particular, has plenty of available jail beds.

California county jails with ICE contracts had, on average, nearly 2,500 open beds in 2015, but ICE had specifically contracted only for 530 of them, according to data from ICE and the state agency that regulates county jails. That doesn’t include open jail beds in local cities with ICE contracts, including Glendale, Pomona and Alhambra.

Also, California is likely to have more jail space sitting empty soon. That’s because a 2012 criminal justice reform known as “realignment” gave counties money to expand their jails so they could accept some inmates from state prisons. Then, just as that building boom got underway, voters passed a measure in 2014 that reduced penalties for some crimes and led to a decrease of 9,000 inmates. So California counties are in the process of adding an estimated 10,000 beds, just as their jail populations are declining.

Lisa Pickoff-White/KQED

Some local counties say they depend financially on their contracts with ICE. Contra Costa Sheriff David Livingston said that the county receives about $2 million a year.

“That money goes to defray the cost of running the jail and reduce the operating cost to the taxpayers of Contra Costa County,” he said.

It’s not always easy mixing immigrant detainees with jail inmates, however. ICE’s standards are higher for detainee health care and recreation time, for example. And the Homeland Security advisory council found that local officials are sometimes “resistant to changes” that require treating ICE detainees differently.

Immigration Court Slowdown Leaves Detainees in Detention for Longer

One of the main reasons so many immigrants are detained in California is that the state has the largest immigration court workload in the country, analysts say.

And part of the reason that ICE needs more bed space is because it’s taking longer for detainees to get a court date. Sending more people into deportation proceedings -- and declining to release them on bond -- will exacerbate the need.

There are currently just 301 immigration judges nationwide -- and they’re handling more than 542,000 pending cases, according to the Department of Justice and data from Syracuse University's TRAC research center. Even if the immigration courts didn’t accept a single additional case, it would take 2½ years to go through the backlog, according to TRAC. (The Department of Justice, which oversees immigration courts, is trying to speed up the system. It is working to fill 61 open positions, and requesting that Congress fund an additional 25 immigration judges.)

Waiting months or years for a hearing in detention can be extremely hard for detainees -- and also for their families.

Right now Heras is trying to figure out how to support her family while her husband is detained. Her younger children, Gabriela and Christopher, are not yet in school, and her oldest, Kevin, has cerebral palsy and needs extra care. So Heras has her hands full as a stay-at-home mom.

“I stopped working because my oldest son had to have an operation,” she said. “But now I have to look for other resources to keep surviving.”

With the help of a pro bono lawyer, Heras and her husband are trying to keep him from being deported. An asylum officer found that Maguiber has grounds to request protection from deportation. His attorney has asked ICE to release him while he awaits his first hearing, which is scheduled for March 29. Heras says the court should not worry that Maguiber will flee.

“My husband has three children,” she said. “He wasn't going to run away from them.”

Another Deportation Method: Expedited Removal

The Trump administration has another tool to deport some undocumented immigrants, one that would put less strain on immigration courts and detention facilities, but that civil liberties advocates say will unfairly deprive people of their right to due process of law.

The policy, called expedited removal, is a fast-track deportation without a hearing before an immigration judge. It was formerly applied only to unauthorized immigrants encountered within 100 miles of the border who had been in the country less than two weeks. Recently, Kelly expanded expedited removal to include people caught by agents anywhere in the United States who cannot prove that they have been in the country at least two years.

Expedited removal would not apply to the majority of people living in the country illegally. The Pew Research Center estimates that two-thirds of the estimated 11.1 million undocumented people in the United States have been here for more than a decade. Maguiber is one of them.

Another reason that the Trump administration may be increasing expedited removals is to save money.

Homeland Security is already budgeted to spend $2.6 billion a year on ICE detention. Congress would have to appropriate more to expand.

Mary Small, the policy director for Detention Watch Network, says that Congress has a track record of paying for this type of enforcement.

“For the entirety of the Obama administration, Congress gave ICE more money than the president asked for in the president's budget,” Small said. “There is a real willingness to throw large amounts of money at locking immigrants up.”

Vaughan believes that while the initial cost to carry out Trump’s policies may be high, over time it will deter illegal immigration.

“When people get the message that you’re not necessarily home free if you make it to the United States,” she said, “I think it’s pretty clear fewer people are going to come here illegally.”

And, she says, people who are already here illegally may think about going home -- when faced with these tougher consequences.

But Maguiber is ready to fight to stay in the country. His father named him after the hero of the 1980s TV show, "MacGyver," that was popular across Latin America. Angus MacGyver was famous for his knack at getting himself out of tricky situations. Maguiber’s family isn't looking for him to bust out of jail like an action hero, but they are hoping he'll find a way out of this bind.

This story was edited by Tyche Hendricks.