For the first time in almost a decade, Sylvester Owino will celebrate his birthday next month outside of an immigration detention center cell. And for the first time in nine years, an immigration judge granted Owino the ability to pay a bond to secure his release, with the only condition being that he would need to make his court appearances. As one of the longest-held detainees by immigration officials, Owino’s detention sheds light on the government’s use of prolonged detention for immigrants who have already served out criminal sentences, but continue to be held without due process.
“I’m just glad I’m out,” Owino told ThinkProgress on a cell phone that he doesn’t quite know how to use yet. “I can’t even explain how I’m feeling. I don’t have nightmares. There’s no one controlling me to wake up to get breakfast and other meals.”
Owino came to the United States in 1998 on a legal student visa from Kenya, but had a series of driving under the influence convictions in 1998 and was caught robbing a store in 2003. He served 26 months of a 36-month prison sentence for second-degree robbery at the Chuckawalla Valley State Prison in California, a low-term sentence due to mitigating circumstances related to alcohol and gambling issues. On November 7, 2005, Owino was transferred to Immigration and Customs Enforcement (ICE) custody to begin deportation proceedings.
But Owino, who was allegedly tortured in Kenya for speaking out against government abuses and advocating for women’s rights, fought for his removal by making a claim for asylum relief under the Convention Against Torture (CAT) wherein an immigrant must show that “it is ‘more likely than not’ that he or she would be tortured if removed.” The immigration judge issued a decision in 2006, finding Owino ineligible for asylum because of his robbery conviction.
This would be the first of multiple back-and-forth appeals between an immigration judge and the U.S. Court of Appeals for the Ninth Circuit for the next six years. The Bureau of Immigration Appeals (BIA) dismissed Owino’s first appeal, stating that he failed to connect his fear of returning with the corruption of Kenyan police and other officials. It also rejected new evidence that Kenyan police were looking for him and Owino’s medical documents from having been beaten by Kenyan police.
The U.S. Court of Appeals for the Ninth Circuit sent Owino’s case back to the immigration judge in 2009, stating that the judge needed to apply the REAL ID Act and consider the totality of the circumstances and all relevant factors to his case, an issue that the judge had not done the first time around. The BIA denied his request on remand to admit the new evidence, dismissing his appeal in 2012.
I begged them to give me bond.
Recalling his time in detention, Owino said that the guards were ruthless. “When my mom died, it was just like, ‘they’re still giving me a hard time.’ I begged them to take me to Mexico or Guatemala. I begged them to give me bond.” Owino said that ICE had put him in solitary confinement twice, both times in two-week increments. Once, he asked immigration officials to put him in solitary confinement “because I was losing my mind, you know?”
“That’s what happens when people make that choice,” Owino’s lawyer James Fife said, explaining why Owino’s asylum claim was so drawn out. “If they’re going to continue to fight their case when they believe that they’re not removable, or if they’re entitled to relief from removal, it’s often the tough choice that they have to make. If they fight it, there’s a good chance that they’re going to remain indefinitely in civil detention.”
Since 2006, Fife has argued that Owino should have been released on bond while his case was under consideration, citing Rodriguez v. Robbins, in which immigrants detained longer than six months have a right to a bond hearing to determine whether or not they should continue to be detained. But each time, immigration officials denied Owino’s bond request, stating that he was a flight risk and a public safety threat.
Finally in 2014, a unanimous panel with the Ninth Circuit revived Owino’s case stating that the BIA neglected to “justify its rejection of certain evidence. The panel also held that the record did not support the agency’s finding of discrepancies in the medical evidence.” Owino was allowed to receive a bond hearing in front of an immigration judge, who earlier this month, told him that he was free to go on a $1,500 bond, the minimum amount generally set for immigrants who have committed low-level crimes or have ties to U.S. citizen family members in the United States.
“For the first time, it seemed, the judge asked him ‘how long have you been in custody?’” Fife said, referencing Owino’s bond release. “And when he answered ‘nine years,’ she honestly, truthfully, told him ‘this is going to take a while to resolve. I don’t think you need to be in custody anymore after all that time.’ It’s kind of like someone finally looked at this from the proper perspective and said, ‘you’ve been in here for a long time and you don’t need to be locked up all this time. That’s the plain truth. The sad thing is that was true, four, five, six years ago as well. The fact that it finally happened, I’m grateful for it.”
The immigration advocacy group Community Initiatives for Visiting Immigrants in Confinement (CIVIC) raised the $1,500 for his bond in less than 30 minutes. Kathy Smith, a volunteer with the advocacy groups SOLACE and CIVIC, was present at Owino’s bond hearing. She said that Owino would have to work on numerous adaptable skills. “Trust is the harder piece. Also cutting down his anxiety. There’s a lot of personal struggles. His mind is racing because of the fear of being picked up again.”
At least everyone I’ve visited has been in detention for more than six months.
Now that Owino is no longer confined to a small detention cell that he shared with another detainee, he’s optimistic that he would be able to stay in the United States, or at least be able to find “any country other than Kenya” to seek asylum. Smith and other CIVIC volunteers, are excited to help him re-enter into American society and help him find a job the second that he can work in the United States. But because Owino is essentially undocumented, he cannot legally work. Without employment, he is living off meager savings that he has from before he entered immigration detention nine years ago. But also, without employment, Owino has to rely on the goodwill of CIVIC volunteers who are helping him get a replacement Kenyan passport, which he lost.
“A huge chunk of my life is gone,” Owino said, recalling his time in detention. “I lost my mom. I lost my dad. I lost my brother. I lost a lot of friends. … I still haven’t adapted yet.”
That’s not uncommon, Christina Fialho, the Co-Executive Director of CIVIC said, explaining that prolonged detention is more the norm among the detainees she’s visited as part of her organization. Fialho said, “at least everyone I’ve visited has been in detention for more than six months. Many of them have been in detention for over two years.” The Transactional Records Access Clearinghouse (TRAC) found that the average detention time nationally was 31 days, but the report found that “at the end of December 2012 there were 4,793 who had already spent at least six months in ICE custody and still had not been released. For these detainees the average detention time was already over a year.” The report also found that about a dozen individuals have spent anywhere between six and eight years in ICE custody, with one extreme case of an individual who has been detained for 17.3 years.
The Federal Bureau of Prisons spends roughly $5.1 billion to keep immigrants in detention centers, half of whom are put in facilities run by private prison companies. Owino stated that over the course of nine years, he had been transferred between various detention centers, some of which are run by the two biggest private prison companies, Corrections Corporation of America and GEO Group. In recent calls with investors, Corrections Corporation of America assured them that there was a continued “strong demand” for beds and GEO group told investors that there was a “growing offender population.” Private prisons especially profit with large margins under the so-called bed mandate quota, a federal requirement that Immigration and Customs Enforcement (ICE) detain at least 34,000 people per day in detention facilities.
“Both private prisons and county jails profit on prolonged detention like Sylvester’s,” Fialho said. “Private prisons profit off of young men, like Sylvester, who have little medical needs and are able to work for $1 a day, which saves private prisons and county jails from having to pay minimum wage to outside workers. CCA is one of the largest for-profit corporations and prolonged detention leads to higher stocks.”
According to the National Immigration Forum, ICE reimburses GEO Group “about $68.75 per day per detainee for the first 480 detainees and $56.48 for all detainees above 480.” As the National Immigration Forum explained, those profits led to “an aggregate increase of $55.6 million in FY2012 from their ICE contracts,” while profits for both companies have continued to soar on an annual basis. The Los Angeles Times reported that between 2003 and 2011, the government funded GEO Group more than $900 million to provide services to detention facilities, while it paid out $631 million in ICE contracts to CCA.
More often than not, many of these detention centers operate under prison-like conditions for immigrants held for civil, not criminal violations. In a 2008 settlement, the Department of Homeland Security (DHS) and CCA agreed to keep the number of immigrant detainees housed at a San Diego, CA correctional facility within the facility’s design capacity, stemming from a lawsuit which alleged that more than 650 immigrant detainees had been living three-to-a-cell, resulting in one person having to sleep next to the communal toilet. Overcrowding issues have led to “physical and psychological suffering, the spread of infectious diseases, lack of adequate exercise, and poor sanitation,” an American Civil Liberties Union (ACLU) press release stated in 2008.
Federal officials are also grappling with what has become a prison overpopulation crisis, as the federal prison population has spiked 780 percent since 1980. And while much of the recent momentum has been focused on sentencing reform, one source of overcrowding comes from the third-largest category of inmates in federal prisons who are charged with immigration-related crimes.