About 40 protesters gathered in front of the Durango headquarters of U.S. Immigration and Customs Enforcement last week. All protest is good for the body politic. We have a First Amendment tailored for it. Unlike, say, parts of Central America, Asia and the Middle East, there is no risk the government will beat and arrest or torture demonstrators. Instead, ICE took no local notice of the gathering.
We did, because this is news. People were expressing views about immigration and the administration of President Donald Trump, which together centered this protest and dozens like it around the country. They carried signs with slogans. We were stopped in our tracks by one that said “Detention Is Torture.”
Detention is not torture. We could give you many examples of torture. We could give you many definitions of detention. The two will not necessarily overlap.
The protesters were angry that ICE, a federal law enforcement agency tasked with apprehending illegal immigrants and detaining asylum-seekers, does its job. There are bad acts of other federal agencies, but there is a reason we do not find ourselves in front of an FBI field office with a sign that says investigation is collusion. That would invite onlookers, for whose benefit protests are staged, to conclude we are unsound.
Lately, we have had a surge of people at the southern border, tens of thousands of whom appear to be migrants from Central America, fleeing poverty and gang violence. They have a right to come into the country at a port of entry and seek asylum, as they have. As the laws are written, three-quarters or more ultimately will be denied it because they cannot establish a credible fear that they will be persecuted or tortured if they return. By tortured, we mean they could be burned with cigarettes, poked with cattle prods, suffocated, sodomized and mauled. We do not mean could be detained without trial, although that is not unlikely, either, and they could face horrific conditions in a prison in Honduras or Guatemala. We want to think the U.S. is better than that, which is why they are seeking asylum here and not in Mexico.
The wait for asylum-seekers to see a judge in immigration court is now roughly two to three years. Some applicants who come alone could be detained that long. There have been abuses in immigration detention, some that long precede Trump and some under his administration, particularly with its policy of family separation. It has been pointlessly punitive and inhumane.
With prodding by the courts, the administration has been forced to back off on family separation and release many asylum-seeking families on their own recognizance and find temporary resettlement for unaccompanied minors. This is dubious, paradoxical and unsustainable because the government is not able to care for them and see to their rights – but the only way it could do that, if it wanted to, is, broadly speaking, by detaining them. What we need is better detention or, better, no detention and a revision of the Immigration Reform and Control Act of 1986.
ICE polices internal immigration, and it detains people who are apprehended, including asylum-seekers who are often taken by Customs and Border Protection. Internal immigration enforcement has become steadily less selective over the last decade, with a jolt two years ago. Critics say it is more draconian, ensnaring people subject to deportation who do not deserve to be removed. They take the policy problem piecemeal, and that is their sacred right.
But to claim that detention is torture is to say the government can make no better arrangement for custody or in lieu of it. It may sound good at first blush, yet it is a morally inconsistent position. It would be far better to really petition the government, and all of Congress, for a redress of our grievances.