By Christina Fialho and Nacho Hernández Moreno
Immigration detention is a fairly recent global phenomenon. Prior to the 1980s, few if any countries maintained a system for incarcerating migrants. Then, two private prisons companies formed in the United States that began lobbying for laws to expand immigration detention. The United States now maintains the largest immigration detention system in the world, but nearly every other country has followed their lead.
We can and must stop incarcerating people simply for crossing a border.
We can and must stop incarcerating people simply for crossing a border. And countries like Spain are showing us all the way out. As of May 8th, Spain no longer has anyone in immigration detention.
Unlawful stay or entry into Spain is not a crime. Therefore, undocumented migrants cannot be convicted and imprisoned because of a breach of criminal law. Undocumented migration is an administrative offense, similar to being outside without justification during the mandatory COVID-19 lockdown.
Spain is not an outlier. In almost every country with immigration detention, the system operates as a civil form of confinement. This allows some of these countries to imprison migrants without the safeguards of the criminal legal system. For example, in the United States, this means people in immigration detention do not have a right to a court-appointed attorney, something afforded to indigent defendants in the criminal justice system.
Despite the fact that immigration detention is not supposed to be punitive, undocumented migrants are detained in prison-like facilities.
Despite the fact that immigration detention is not supposed to be punitive, undocumented migrants are detained in prison-like facilities. In these prisons, migrants are deprived of their families and ability to move freely. In addition, immigration detention restricts other rights, such as communication with relatives and lawyers.
In response to COVID-19, Spain has shut down all eight of its immigration detention facilities, and around 500 migrants have been released. By law, detention in Spain is applied only as a means to ensure deportation. As deportation is no longer feasible by law in Spain due to COVID-19, detention lost its legal basis. Advocates petitioned the government and judges to empty all detention centers. This is in sharp contrast to the United States, which has continued to deport people, even those who have tested positive for COVID-19.
The mass release of all people from Spain’s immigration detention system in a matter of just six weeks was possible because of the work advocates have been doing on the ground for years. Since March 14th, when Spain declared a state of emergency, Fundación Cepaim has hosted 46 people--or almost 10 percent of the total previously detained population. These individuals were released from immigration detention facilities in Madrid, Valencia and Murcia into the organization’s Humanitarian Assistance Project.
The Project provides housing, nutrition, clothing, hygiene, and even Spanish classes for participants. Migrants in the program receive support from a team of social workers and volunteers at dozens of locations across the country. Migrants also are provided with a dedicated lawyer who also is involved in other activities within Fundación Cepaim, such as the reception project for refugees, asylum seekers and stateless persons.
With the closure of all immigration detention centers in Spain due to COVID-19, advocates are pushing for a permanent end to immigration detention...
The Project is government-funded and has been in operation for over a decade to provide for the basic needs of migrants who arrive on the coast or are intercepted at sea. If the authorities determine they cannot deport them within 72 hours of being detained, they are usually released and sent to social organizations that run humanitarian reception projects, such as Fundación Cepaim. With the closure of all immigration detention centers in Spain due to COVID-19, advocates are pushing for a permanent end to immigration detention with groups like Fundación Cepaim expanding their services to provide assistance to all those who would have been previously detained.
Freedom for Immigrants runs a similar program in the United States, funded through private donors, and managed by a team of social workers and volunteers. Rather than being detained, people are released back to their families in the United States. If they do not have family in the country, they are connected with a host family and provided with post-release support.
As of now, the U.S. government does not fund community-based alternatives to detention, but the House of Representatives has proposed funding for post-release support services as a component of the U.S. government's on-going disaster relief efforts. In addition, California recently made funds available for immigrant communities, and is considering a proposal for post-release support services.
This is a step in the right direction for the United States.
While the United States continues to detain nearly 30,000 immigrants in detention each day, it is possible to abolish immigration detention not in a matter of decades, but in a matter of months. Spain has shown the world that this is possible, even during a global pandemic.
Christina Fialho is an attorney and the co-founder/executive director of Freedom for Immigrants. Nacho Hernández Moreno is a lawyer at the International Affairs Department at Fundación Cepaim.