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 [...]
Defining due process limits on mandatory immigration detention
Farrin R. Anello Recent news reports and studies have shed new light on the massive scope of the United States’ deportation regime and its destructive impact on families and communities. Even as President Obama calls for a review of deportation policies, his administration continues to lock up huge numbers of people during their removal proceedings and appeals. Whereas people in criminal proceedings cannot be detained without an individualized hearing to assess danger and flight risk, many people in the removal system are held for months or even years without bond hearings. Since Congress [...]
More humane immigration law
Last week, President Obama ordered his administration to review whether immigration law can be enforced in a more “humane” manner. To borrow a refrain from his first campaign for president, “Yes, we can.” First, he can reduce the number of people detained and second he can reduce the number of people removed from the United States. Here are just a few ideas how the Obama Administration can do that without waiting for congressional action. First, the President should acknowledge that immigration detention is out of control. At last count (fiscal year 2012), 477,523 people saw the inside of an [...]
US Dist Ct: Mandatory detention presumptively unreasonable after 6 months
The federal government may invoke the INA’s mandatory detention provision, INA § 236(c), to keep individuals in removal proceedings locked up without bringing them before an immigration judge for a bond hearing. After that, the U.S. District Court for the District of Massachusetts concluded, immigration officials must provide detainees with bond hearings. Reid v. Donelan, No. 13-cv-30125-MAP, slip op. (D. Mass. Jan. 9, 2014) (Ponsor, J.). This case involved an LPR detained for 14 months by the time the court issued its order in January. During this time, he lost a claim for protection under [...]
Is immigration detention a feature of incarceration?
A pair of reports produced by well-respected policy organizations in the United States implicitly raised a question about the proper role of immigration detention in discussions of imprisonment generally. Should we consider immigration detention as a wholly distinct topic from incarceration or is immigration detention a part of incarceration policies? A report produced by the estimable Brennan Center for Justice on reforming financial incentives propelling mass incarceration took the former approach. The report, Reforming Funding to Reduce Mass Incarceration, is an impressive assessment [...]
New ICE policy on segregated confinement
A new ICE policy on use of segregated detention surfaced last week. The policy appears to respond to widespread criticism of ICE’s use of detention by more clearly articulating circumstances in which segregation is permitted. U.S. Immigration and Customs Enforcement, Review of the Use of Segregation for ICE Detainees (September 4, 2013). As I summarize in a forthcoming article in the UCLA Law Review, immigration detainees are reportedly placed in solitary confinement where they are locked in cells for twenty-three hours a day without contact with other detainees. A recent review of [...]
Report reveals key info about immigration prisons
A report by Human Rights First discloses a wealth of hard-to-find information about the nation’s burgeoning immigration detention system. Jails and Jumpsuits: Transforming the U.S. Immigration Detention System—A Two-Year Review (2011) goes a long way to shattering the legal claim that immigration detention is a form of civil confinement. Though this report was published two years ago, I only recently came across it and found it very informative. Over and over, the report exposes immigration detention centers as using the same procedures as criminal jails. Detainees usually wear uniforms that [...]
ICE Risk Assessments: From Mass Detention to Mass Supervision?
Mark Noferi and Robert Koulish [Ed. Note: Today, Mark Noferi is joined by Professor Robert Koulish, a political scientist in the Department of Government and Politics at the University of Maryland who also teaches immigration law at Maryland’s Carey School of Law. Professor Koulish’s most recent book is “Immigration and American Democracy: Subverting the Rule of Law,” in which he examined immigration control as a laboratory for post-9/11 expansion of U.S. executive power, and he is co-editing “Immigration Detention, Risk and Human Rights—Studies on Immigration and Crime” (2014 release). His [...]