Despite the vast number of migrants who are detained every year while waiting to learn whether they will be allowed to remain in the United States—almost 480,000 at last count—the federal government has consistently maintained that immigration detention is not punishment. It is civil confinement, the refrain goes. Detainees, advocates, and scholars, including me, have hammered away at this position, claiming it is more myth than reality, but government sources have held steadfast. Recent statements by multiple DHS officials, however, suggest that the federal government might finally be admitting what the rest of us have known for years: immigration detention feels and looks a whole lot like punishment.
Stretching to the late nineteenth century, the Supreme Court has repeatedly concluded that immigration detention is not punitive. In Wong Wing v. United States, 163 U.S. 228, 235 (1896), the Court explained, “We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.” More recently, the Court described the process for detaining migrants after entry of a removal order as “civil, not criminal,” then added, “we assume that they are nonpunitive in purpose and effect.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). In neither case, however, did the Court actually explain why it assumes that this type of deprivation of liberty is civil rather than punitive. As I wrote in Immigration Detention as Punishment, “Despite the consistent description of immigration confinement as civil, the Court has never explicitly rationalized this determination.” 61 UCLA Law Review 1346, 1353 (2014).
Because immigration detention is deemed civil as a matter of law, the usual Fourth Amendment limitations on the government’s power to deprive a person of liberty do not apply. Importantly, immigration officials are not required to obtain probable cause that a migrant has violated immigration law before taking a migrant into a secure facility.
Some limits do nonetheless apply. Traditionally, the BIA has insisted that migrants “should not be detained or required to post bond except on a finding that he is a threat to the national security…or that he is a poor bail risk.” Matter of Patel, 15 I&N Dec. 666, 666 (BIA 1976) (internal citations omitted). This traditional view has been upended by the mandatory detention provision, INA § 236(c), that forces immigration authorities to take custody of anyone who meets specified criteria. There is no question that the vast majority of children and other Central American migrants who arrived in the United States over the summer and continue doing so—though apparently in smaller numbers—are not subject to mandatory detention. For people like them who are not subject to mandatory detention, the two traditional justifications for civil immigration detention would seem to remain applicable: do not detain unless the migrant poses a danger to the public or flight risk. See, e.g., Matter of Ellis, 20 I&N Dec. 641, 642 (BIA 1993).
In recent months, however, DHS officials have added a third justification: deterrence. In a July 10 statement to the Senate, DHS Secretary Jeh Johnson described detention and removal as key parts of the Obama Administration’s “aggressive deterrence strategy focused on the removal and repatriation of recent border crossers” (emphasis added).
With less fanfare, lower level DHS officials have crystallized the Administration’s view in documents submitted to immigration courts opposing bond for detained migrants. In a formal declaration that ICE is including in its model bond opposition packet for recently arrived Central Americans, the agency’s Assistant Director of Field Operations for Enforcement and Removal Operations, Philip T. Miller, wrote: “I have concluded that implementation of a ‘no bond’ or ‘high bond’ policy would significantly reduce the unlawful mass migration of Guatemalans, Hondurans, and Salvadoran [sic].” Miller added, “[T]he current detainees already are motivated, inter alia, by the belief that they would receive release from detention. Validating this belief further encourages mass migration….”
Another ICE official, Assistant Director of Investigative Programs for Homeland Security Investigations Traci A. Lembke, was even clearer in her own statement: “Implementing a ‘no bond’ or ‘high bond’ policy would help alleviate these disruptions by deterring further mass migration” (emphasis added). DHS attorneys have accordingly been opposing bond for children and families.
ICE repeated this position this week in a press release touting its planned 2,400-bed immigration detention center for children and families when it explained: “These facilities will help ensure more timely and effective removals that comply with our legal and international obligations, while deterring others from taking the dangerous journey and illegally crossing into the United States.” ICE, Press Release, ICE To Open Additional Facility in South Texas to House Adults with Children (September 22, 2014) (emphasis added).
DHS’s statements seem to conflict with the BIA’s stated justifications. Do we allow immigration detention to ensure that migrants appear for their court dates and avoid having them endanger the public? Or do we detain to deter others from engaging in immigration law violations? The law is clear: immigration detention is justified for the first two reasons, but not the last.
Criminal detention, on the other hand, is frequently justified as a means of deterring others from engaging in similar illegal activity in the future. Indeed, in Kansas v. Hendricks, 521 U.S. 346, 361-62 (1997), the Supreme Court explained that there are “two primary objectives of criminal punishment: retribution or deterrence.” The Court added that the state legislature had articulated a number of reasons for enacting the statute, none of which evinced a desire to deter.That stands in stark contrast to the position DHS has taken.
To be sure, DHS is not Congress. The agency can’t simply rewrite congressional intent. As a straightforward legal matter, courts are obligated to continue interpreting the statutes authorizing immigration detention through the lens of congressional intent. I have argued elsewhere that there is plenty of evidence in the historical record indicating that Congress adopted the modern immigration detention statutory scheme as a means of punishing migrants.
My goal here, however, isn’t to focus on Congress. The fact of the matter is that DHS has repeatedly announced a refreshingly honest position on its massive immigration detention practice. We don’t detain to ensure that migrants appear for court dates or avoid endangering the public, the agency has effectively admitted; we detain to keep others from violating immigration law. This, I can’t help but notice, is a justification for punitive imprisonment, no different from the reason the United States confines so many after a criminal conviction.
So is immigration detention a form of punishment? DHS seems to think so.
[Editor’s Note (September 26, 2014): The declarations by ICE officials Miller and Lembke rely in part on a report by Vanderbilt political science professor Jonathan Hiskey and two coauthors for the proposition that detention can deter migrants. In a sworn affidavit, Hiskey disputes this claim. “[T]here is absolutely no evidence in the Report that U.S. policy with respect to detention has any influence at all on the decisions women and their children are making with respect to migration,” he explains. In Hiskey’s view, “based on my own research and my knowledge of the field of migration studies, the phenomenon of ‘migration networks’ does not justify the blanket detention of Central American mothers and children seeking asylum in the U.S.”]
Find this information useful? Then let others know about crImmigration.com, as well as César’s Twitter, Facebook, and LinkedIn pages. And to make sure you don’t miss an update, subscribe to the blog by entering your email address in the subscription box that appears on every page.