In The President and Immigration Law, Adam Cox and Cristina Rodríguez make a compelling case for their central claim: U.S. immigration law, and particularly the law and policy of deportation, has always been co-produced by Congress and the executive branch, with a key role played by local government. Indeed, absent a radical reconfiguration of the American immigration system, co-production is inevitable. The implication is that we should praise or criticize presidential deportation policy – whether it leans towards forbearance or maximalism – on the merits, not on some ahistorical intuition that it usurps congressional authority. I entirely agree.
In fact, precisely the same points apply to an aspect of American deportation system Cox and Rodríguez mention only briefly: immigration detention. Like the rest of the deportation system, the current immigration detention regime has been co-produced by Congress and the executive branch. And as with the rest of the deportation system, where we’ve landed is gravely inappropriate, inflicting massive harms on noncitizens without anything close to a compelling justification. Either Congress or the president could fix the mess we are in by cutting back the detention system to no bigger than its early 1990s size. Letting thousands of immigration detainees out of their unnecessary jail cells would not only be more humane; it would also improve the fairness and accuracy of the immigration adjudication that detention is supposed to assist.
Explosion of the Immigration Detention System
The federal immigration detention system has grown by leaps and bounds over the past 25 years. The figure below illustrates:
Average Daily Population, 1979–2020
(Reprinted from Schlanger et al., Incarceration and the Law (2020); for sources and downloadable data see https://incarcerationlaw.com/resources/data/.)
As the figure shows, immigration detention population grew quickly in the final years of the Bush administration (2007 and 2008), and then plateaued at that new high level during the Obama administration. Under President Trump, Immigration and Customs Enforcement (ICE) massively increased detention each year until this year.
This figure in fact far understates the reach of the system. Annual admissions into immigration detention total more than 10 times the illustrated average daily population. However, in recent months (postdating the once-per-year snapshots in the figure), the coronavirus pandemic has induced a dramatic decline in detained population; ICE’s most recent report tallies a daily average of fewer than 14,000 immigration detainees in September 2020.
Incarceration by Any Other Name
Make no mistake: immigration detention – while nominally civil – is incarceration. ICE detention takes place in county jails and in detention centers, run by private corrections companies, that look and feel like crosses between jails and prisons. The government standards that govern detention conditions – which are unenforceable by detainees and poorly enforced by ICE – have their origin in jail standards.
From 2009 to 2011, the Obama administration undertook to reform immigration detention and make it civil in fact as well as in law. The effort was a failure. The rules that govern detainees remain all-but-indistinguishable from analogous rules in jails and prisons. Just like jail and prison inmates, immigration detainees suffer from the same absence of control over their daily activities, the same bad food, unresponsive or even abusive medical care, exposure to sexual abuse, and punishments by solitary confinement.
Unjustifiable Detention and Its Effects
The justification for these often-devastating deprivations is weak. Focusing on pre-decision detention, evidence demonstrates that detention is not necessary to ensure that noncitizens show up for their immigration hearings, its chief purported purpose. Indeed, evaluations of non-detention custodial supervision find extremely high rates of compliance; 99 percent of participants continued to appear for their court hearings in two alternative programs in 2011-2013 and 2016-2017, for example.
So what does detention accomplish? There are two principal effects, both indefensible. First, detention undermines the fairness of immigration proceedings. Vanishingly few detainees are successful in finding immigration lawyers. (How could they be? They are in jail where they cannot look for a lawyer or earn money to pay for one.) Unrepresented noncitizens’ cases are then fought on an uneven playing ground, allowing the government often inappropriate prosecutorial victories. (Studies show that represented detainees succeed in their challenges to deportation over 10 times as often as those without counsel.) Detainees face a laundry list of other defensive disadvantages as well, simply by virtue of their detention. To list just two examples: They appear in immigration court by video rather than in person, undermining their effectiveness as witnesses. And they are unable to gather documentation of their claims or enlist witnesses’ assistance, deficits often fatal to asylum claims in particular.
ICE detention’s second principal effect is the incredible pressure it exerts on detainees to give up even plausible defenses and, instead, acquiesce to deportation. Criminal defendants incarcerated in jail while they await trial often plead guilty in exchange for a time-served sentence, foregoing even meritorious defenses. Similarly, immigration detainees also frequently give up their cases, “choosing” deportation over long-term incarceration as the system slowly grinds through their case.
Excessive Immigration Detention: An Executive and Congressional Co-Production
The executive, through ICE, and Congress together have co-produced the recent high detention populations. Unlike state prison authorities, ICE has the ability to decide how many people it will incarcerate, greasing their path to deportation by the two illegitimate effects described above. As immigration prosecutor, ICE decides how many noncitizens to put into immigration proceedings. And for many, it also decides whether they will face those proceedings from home or from jail, by setting a high or low immigration bond. In other words, by choosing to detain an individual rather than prosecute the case without detention, ICE vastly increases the odds that the case will result in a deportation, irrespective of its merits. Escalating detention numbers are responsive to this incentive.
Moreover, Congress has pushed ICE to use these policy levers in service of high detention populations, passing appropriations bills that instructed ICE to maintain a very large detention capacity. Congress’s “bed space mandate” required the Department of Homeland Security (DHS) to fund 33,000 to 34,000 immigration detention beds beginning in 2009; advocates finally succeeded in eliminating the quota in 2017, only to see the Trump administration to ramp up detention even further, with congressional acquiescence to sketchy funding transfers from other DHS missions.
Before President Trump’s embrace of maximalist enforcement strategies, the Obama administration could have resisted the bed space mandate. It could, for example, have left some beds empty, even if paid for. That would, however, have subjected the administration to vigorous pushback by congressional appropriations committees. (Appropriations committee members had many avenues of pushback available). Obama’s DHS chose not to pick the fight. As mentioned, the congressional bed quota was eliminated in 2017; but the Trump administration nonetheless enthusiastically ramped up detention numbers to unprecedented levels.
Re-Scaling Immigration Detention
In 1987, Chief Justice Rehnquist (obviously no liberal) wrote for the Supreme Court, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The law is clear that civil detention cannot be justified as punishment. For that reason, it is allowed only when a “sufficiently strong special justification” outweighs a would-be detainee’s “constitutionally protected interest in avoiding physical restraint.”
But nothing about immigration detention has been “carefully limited,” and the justifications generally on offer are far from strong or special. In fact, prior to the current pandemic, the system had metastasized. One of the few silver linings of COVID-19 is its deflationary effect on immigration detention numbers. Far from re-expanding the system by (say) 200% (that is, to its 2014 size), the next Congress or the next President should shrink immigration detention even further, to cover only the rare situations where its justifications are most pressing. Pre-decisional detention is appropriate only where alternatives cannot work to elicit attendance at immigration hearings—and they nearly always can. That would respect constitutional values that have been too-long ignored. It would save lives and reduce trauma. It would promote fairer immigration adjudication.
Cox and Rodríguez are right – let’s not waste time on debating whether the right reforms should come from Congress or the President. Neither needs to wait for the other to do the right thing: Congress could decline to appropriate funding for so many detention beds; DHS could decline to fill them. It is past time for either – or both – branches to dramatically shrink immigration detention.
Image: CLAREMONT, CA – DECEMBER 09: A Christmas nativity scene depicts Jesus, Mary, and Joseph separated and caged, as asylum seekers detained by U.S. Immigration and Customs Enforcement, at Claremont United Methodist Church on December 9, 2019 in Claremont, California. The church hopes the display will prompt viewers to ask themselves what the family would face today if seeking refuge in the U.S. as they did when fleeing Nazareth to Egypt to escape capture by the forces of King Herod. The Claremont United Methodist Church has worked to assist asylum seekers at the U.S.-Mexico border. (Photo by David McNew/Getty Images)
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