Immigration imprisonment is undeniably a core feature of immigration law enforcement. Every year since President Obama took office, ICE has held somewhere in the vicinity of 400,000 people behind barbed wire simply because they are thought to have violated a civil provision of immigration law. Almost another 100,000 are confined while awaiting prosecution for an immigration crime, usually unauthorized entry or unauthorized reentry. States do their part too to ratchet up the likelihood that a migrant will wind up behind bars for doing something related to migration. Arizona has been most creative, but it’s certainly not alone. The bottom line, as I described in a recent California Law Review article, is this: every year more than half a million people are confined because of migration-related activity.
This is a remarkable number, but not one that is etched in stone. As I wrote in that article, “To better reflect the extraordinary character of imprisonment, its proper place in enforcing immigration law should be at the sidelines…As with the development of prisons in the first place, what is required is a willingness to imagine a different path and the entrepreneurial spirit necessary to operationalize it.” To that end, I have outlined some preliminary thoughts on how the United States might go about limiting immigration imprisonment.
On the legislative front, Congress has an enormous role to play in ending immigration imprisonment. Just as it was instrumental in building up the existing immigration prison archipelago, it can take several important steps toward ending this practice. Most obviously, it could rescind the legislative authority for civil immigration detention and decriminalize all immigration-related activity, beginning with unauthorized entry or unauthorized reentry into the United States. Congress, in other words, has the power to abolish immigration prisons in one act. Clearly it’s unlikely to do that anytime soon. Short of that, it could make immigration imprisonment less common by capping the maximum number of people confined by ICE, the U.S. Marshals Service, or federal Bureau of Prisons due to migration-related activity, borrowing a tactic New Orleans abolitionists prevailed on the city council. See Maya Schenwar, Locked Down, Locked Out: Why Prison Doesn’t Work and How We Can do Better 125 (2014).
Similarly, Congress could rescind sections of the Immigration and Nationality Act (INA) that require confinement of large groups of migrants, provisions that borrow conceptually from the categorical assessments of criminality underlying mandatory minimum sentences, a goal embraced by some prison abolitionists. See id. at 129. In addition, Congress could legislatively decrease the use of cash bonds in civil and criminal immigration proceedings. On the civil side, it could amend the INA to remove the requirement that immigration judges issue a bond of at least $1,500 (when they elect to issue a bond at all). On the criminal side, Congress could clarify that neither citizenship status nor immigration status ought to be considered when federal judges presiding over criminal immigration cases determine whether a bond is appropriate and, if it is, the bond amount.
Regardless of Congress’s willingness to act, Executive branch officials in the Departments of Justice and Homeland Security have no shortage of options by which to reduce immigration imprisonment. The Justice Department, for example, could revise its guide to immigration judges to not only remove the instruction that they are not to consider ability to pay when determining bond amounts, but that they are to affirmatively consider ability to pay. In addition, the Justice Department’s Board of Immigration Appeals could revisit the meaning of the word “custody” in the INA’s so-called “mandatory detention” provision to mean any infringement of a person’s liberty rather than treat it as a synonym for “detention” as it currently does. César Cuauhtémoc García Hernández, Crimmigration Law 101-02 (2015).
Though this could—and to some extent has—result in nothing more than expanded use of non-detention forms of surveillance, it could also open the door to non-state forms of community accountability. There is reason to be hopeful. The abolitionist Maya Schenwar writes that this type of strategy has previously be embraced in the criminal incarceration reform context. As Schenwar describes, one abolitionist organization advocates “for moving away from cash bail and toward release and community accountability, in which services are provided by organizations based within the community instead of by state agencies.” See id. at 127. Furthermore, for its part, DHS could allow people to post a portion of the cash bond amount instead of requiring 100 percent payment.
The judiciary could also play a role in moving toward system-wide immigration prison abolition. Of their own accord, they could, for example, refuse to consider citizenship status or immigration status when making bail decisions for defendants facing immigration crime charges. They could continue to breathe life into the longstanding doctrine that laws that are too vague to know what they mean violate due process principles (see, e.g., here and here). Or courts could treat as federal crimes such as unauthorized entry and unauthorized reentry beginning and ending at the moment of crossing the border, thus limiting the number of people who could be convicted (and imprisoned) as a result.
Whatever the merits of any one of these proposals, collectively they illustrate that there are plenty of options available to scale back the nation’s gargantuan experiment with immigration imprisonment. If the United States continues locking up people on a large scale because they are suspected or confirmed to have engaged in prohibited migration-related activity, it’s because policymakers have chosen to do so. It’s not for a lack of options.
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