Abstract
Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes—if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a ‘noncitizen presumption’ of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with the risk posed by noncitizens increasingly seen as little different, at least those treated with dignity. Moreover, this ‘noncitizen presumption’ of danger contravenes empirical evidence and overdetains the nondangerous even more so than criminal pretrial detention practices, themselves under reform. Rather, the ‘noncitizen presumption’ rests on stereotypes of dangerous, recidivist ‘criminal aliens’—which, because of a noncitizen’s inherently speculative past, particularly bolster the tendency of preventive detention regimes to choose detention. I preliminarily offer two theories for the ‘noncitizen presumption,’ both reflecting expressive, symbolic characteristics of immigration detention law—government overcompensation for public ‘blaming the gatekeeper’ and, complementarily, a social construct of noncitizens as invitees, derived from property law.
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Notes
- 1.
For example, Mary Fan argued that “criminal punishment and its costs should not turn just on the status of being an alien,” but regarding U.S. laws criminalizing unlawful entry, rather than detention pending immigration proceedings (Fan 2014, p. 135). Jennifer Chacon, in analyzing deportation, noted “questions about why the criminal law is deemed to provide sufficient punishment for citizens, but not for non-citizens,” without isolating detention (Chacón 2007, p. 1887).
- 2.
Geoffrey Heeren analyzed U.S. mandatory immigration detention generally. Here, I isolate prehearing, postentry mandatory detention on criminal grounds (Heeren 2010). Anil Kalhan primarily surveyed immigration detention conditions (calling them “quasi-punitive”), without focusing on particular detention laws or mandatory detention (Kalhan 2010).
- 3.
DHS also discretionarily detains noncitizens in deportation proceedings (8 U.S.C. § 1226(a)).
- 4.
Mandatory detention also exists postdeportation order, and for “arriving aliens” at the border (Heeren 2010, pp. 609–613; Noferi 2012, p. 83/n. 108). Postdeportation order detention seeks the same goals as preremoval order, but after adjudication of deportation, before execution of removal (Legomsky 1999, p. 534). An individual is mandatorily detained for ninety days after the removal order and, if not removed during those 90 days, may be released under supervision (INA § 241(a)(1)-(3), 8 USC.§ 1231(a)(1)–(3)). Additionally, ‘arriving aliens’—noncitizens arriving to the United States, including returning LPRs and asylum seekers—are mandatorily detained if deemed inadmissible, without any immigration judge review (8 USC. §1225(b)(1)(B)(iii)(IV), (b)(2)(A)). They may be paroled into the United States, however (8 USC. §1182(d)(5)) (authorizing humanitarian parole). Also, such ‘arriving aliens’ from Mexico or Canada may be mandatorily detained during ‘expedited removal,’ a fast-track procedure that allows immigration officers to issue removal orders with no hearing or review (8 USC. §§1225(b)(2)(c), 1229a).
- 5.
César Cuauhtémoc García Hernández argues that immigration detention constitutes punishment in light of its legislative history, without isolating mandatory detention provisions (Hernández 2014).
- 6.
I will explore these arguments further in future research.
- 7.
- 8.
The U.S. also can mandatorily detain one that the Attorney General certifies as a national security threat. INA § 236A; 8 USC § 1226A. This capability has never been exercised (Cooper Blum 2012, p. 691).
- 9.
- 10.
But see Hernández (2014) (arguing that immigration detention is punishment because legislative intent was punitive).
- 11.
Federal immigration law primarily uses categories of crimes to trigger detention and deportation, rather than cross-referencing specific state or local criminal statutes (Das 2011, p. 1672).
- 12.
(8 USC. § 1226(c)(1)(A)–(D); Noferi 2012, p. 90).The noncitizen has a high burden to challenge a DHS mandatory detention determination—essentially, to show DHS has no nonfrivolous argument supporting the determination. Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999) (noncitizen must show that the government is ’substantially unlikely’ to establish the mandatory detention charge(s) at the removal hearing). The analysis of whether a crime fits the mandatory detention categories is incredibly complicated and can include different modes of statutory analysis (“categorical” or “modified categorical” analysis), in different judicial circuits, as well as facts from the initial crime (Noferi 2012, pp. 89–96). Indeed, mandatory detention analysis spurred U.S. Supreme Court Justice Samuel Alito to say that “nothing is ever simple with immigration law” (Padilla v. Kentucky 2010, p. 1490).
- 13.
The study found some convictions over 40 years old (TRAC Immigration, Syracuse University 2013b).
- 14.
Human Rights Watch found that approximately 20 % of those deported on criminal grounds between 1997 and 2007 were lawful permanent residents (Human Rights Watch 2009, p. 4). Similarly, an NYU study of New York ICE arrestees from 2005 to 2010 found that 21.2 % were lawful permanent residents (NYU School of Law Immigrant Rights Clinic et al. 2012, p. 7).
- 15.
Human Rights Watch found that 72 % of those deported between 1997 and 2007 on criminal grounds were deported for nonviolent offenses, with the number rising to 78 % when considering lawful permanent residents (Human Rights Watch 2009, p. 4). It is unclear how many of these individuals were mandatorily detained.
- 16.
Cox and Rodriguez called “breathtaking” the scope of deportation statutes for criminal grounds (Cox and Rodriguez 2009, p. 516). For these reasons, several U.S. states and localities now refuse to hand over minor offender noncitizens to federal immigration authorities. These jurisdictions include California, Connecticut, New York City, Chicago, Los Angeles, Newark, New Orleans, and Washington, D.C. (New York Times 2013a).
- 17.
If 9 % does not seem high, consider that New York City criminal courts in 2010 denied bail to only 1 % of defendants in cases continuing past arraignment (Sect. 2.4).
- 18.
Recent data since 2011 is similar. For example, TRAC Immigration, a Syracuse University research project studying public immigration data, found that in fiscal year 2013 to date, approximately 14.3 % of those placed in proceedings were charged as deportable on criminal grounds, with slightly over 4 % charged with an ‘aggravated felony’ (which would automatically trigger mandatory detention) (TRAC Immigration, Syracuse University 2013a).
- 19.
The expert report was filed in California federal litigation challenging the lack of individual bond hearings under mandatory prehearing detention laws. One-third of these detainees (33 %) won their cases, showing that challenging deportation was not a lost cause. Another 11 % had cases still pending at the time of the study (Long 2013, p. B-4).
- 20.
Allowable considerations included age, health, elapsed time of detention, and likelihood of resuming or engaging in deportable behavior.
- 21.
Anti-Drug Abuse Act of 1988, Pub. L. No. 100–690, § 7343, 102 Stat. 4181, 4470 (codified as amended at 8 USC. § 1252(a)(2) (2006)).
- 22.
Anti-Drug Abuse Act § 7342 (amending INA § 101(a)), § 7343) (amending INA § 242(a)).
- 23.
Immigration Act of 1990, P.L. 101–649, Nov. 29, 1990, 104 Stat. 4978; Hernández (2014), p. 1368.
- 24.
House Committee on the Judiciary 1989, p. 52 (after criminal aliens were identified as deportable, 77 % were arrested at least once more and 45 % were arrested multiple times before deportation proceedings began).
- 25.
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104–132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, 40, and 42 USC.); Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104–208, 110 Stat. 3009 (codified as amended in scattered sections of 8 USC).
- 26.
In the U.S. criminal system, courts have reached the opposite conclusion (Reno v. Koray 1995 [defining “custody” to include those under prison system control]).
- 27.
2013 U.S. Senate legislation would have changed this to explicitly define “custody” under INA § 236(c) to include electronic ankle devices (“Border Security, Economic Opportunity, and Immigration Modernization Act,” § 3715(d)).
- 28.
Indeed, U.S. criminal laws rarely categorically impose detention without bail. The U.S. federal criminal code provides a rebuttable presumption that a defendant shall be denied bail on public safety grounds, if charged with certain serious crimes or crimes of violence, but the defendant is still provided a lawyer and a hearing to challenge that presumption (18 USC § 3142). U.S. mandatory immigration detention provides no similar hearing or appointed lawyer.
- 29.
Immigration authorities’ tendency to detain more continues throughout their discretionary decisions. DHS denied bail discretionarily to another 71 % of New York ICE arrestees, and set bail for 20 % of immigration arrestees at markedly higher rates, while releasing less than 1 % on recognizance. Comparatively, New York criminal judges set bail for 20 % of defendants and released 68 % on recognizance (NYU School of Law Immigrant Rights Clinic et al. 2012, p. 10). I will address these vast discrepancies in future research.
- 30.
Other concerns exist regarding immigration risk assessments. The current lack of transparency, and concurrent possibility of overweighting towards detention, is one. More broadly, without transparency or process checks, risk assessment may facilitate a transition from mass incarceration to mass supervision, with its own attendant set of concerns (Koulish and Noferi 2013b). Robert Koulish and I have examined risk assessments in research, based on ICE immigration risk assessments received through FOIA (Noferi and Koulish 2014).
- 31.
- 32.
A separate 2009 study of immigration detention found that of the 42 % of detainees with a criminal record, 8 % were convicted of fraud, public order offenses, or forgery or counterfeiting. Thirty percent were convicted of drug crimes (Kerwin and Li 2009, pp. 20–21).
- 33.
Jennifer Chacon argued that U.S. policy incorporates a “misguided belief that non-citizens require extra incapacitation in the form of criminal removal” (Chacón 2007, p. 1887). Here, I argue that mandatory detention extends this “extra incapacitation” to the time period in removal proceedings, awaiting a determination.
- 34.
As the study found, “mandatory detention of virtually all criminal aliens is not necessary.” Even 82 % of criminal aliens released on recognizance without supervision appeared, as did 77 % of those released on bond. The study did involve a selected group of detainees. On the other hand, the study also employed lesser restrictive alternatives such as supervision, in addition to electronic tracking bracelets.
- 35.
A 2003 U.S. Supreme Court decision upholding mandatory immigration detention discussed rates of immigration flight without comparing them to criminal rates (Demore v. Kim 2003).
- 36.
Thus, Field and Edwards' 2006 United Nations study assumed that an immigration compliance rate of over 80 % demonstrated effectiveness.
- 37.
Although ICE requires localities to share information, some states and cities now refuse to provide ICE noncitizen residents with criminal convictions (New York Times 2013b). This reflects public disagreement with ICE’s policies, however, rather than technological capability.
- 38.
A 2011 survey of European detention similarly stressed early access to reliable assistance and legal advice (Amaral 2013).
- 39.
- 40.
See U.S. Immigration and Customs Enforcement, Secure Communities, available at http://www.ice.gov/secure_communities/ (“The highest priority of any law enforcement agency is to protect the communities it serves,” and thus “ICE prioritizes the removal of criminal aliens”).
- 41.
Contrastingly, the Obama Administration chose to implement a “deferred action” policy for undocumented youth, despite Congress’ failure to pass legislation.
- 42.
Not all elected officials posed this criticism. For example, Rep. Spencer Bachus (R-AL) asked, “Are you overusing detention? Are some of these mandatory detainees where we [Congress] could recommend they not be?” (Koulish and Noferi 2013b).
- 43.
- 44.
Nor is a conviction a reliable indicator of undesirability (Cox and Posner 2007, p. 846). As McLeod points out, a noncitizen may have “possessed narcotics, trespassed, shoved someone during a verbal altercation or pulled their hair, jaywalked, jumped a subway turnstile,” and on and “still be a valued contributor” to the U.S., let alone not dangerous (McLeod 2012, p. 149).
- 45.
“How can one prove what someone would or would not have done had he been free?” (Cole 2009, p. 696).
- 46.
Briefly, I note too that the rehabilitation rationale, present in criminal incarceration, likely plays little role in prehearing immigration detention. For one, immigration detention’s baseline assumption has historically been deportation of detainees, rather than their return, and as a corollary rehabilitation has been presumed unnecessary from society’s standpoint (Stumpf 2011, p. 1709). (That said, as more detainees receive procedural rights like appointed counsel and win deportation cases, this might change) (Noferi 2012, pp. 127–128). For another, rehabilitation presumes remorse by the individual, which is less likely present (nor legally required) regarding civil immigration law violations (Hernández 2014, p. 1401).
- 47.
Similarly, Australia passed its mandatory detention law to discourage so-called boat people from arriving (Nat’l Immigrant Justice Ctr. (NIJC) 2010, p. 2).
- 48.
In any case, when the U.S. retroactively passed these mandatory detention laws, many individuals had already committed crimes which could not possibly be deterred.
- 49.
- 50.
Here, I consider whether mandatory immigration detention is extra punishment for the crime, not the immigration violation, because the crime triggers the immigration detention, not immigration status. Indeed, lawful permanent residents may have no immigration violation, save the impact of the criminal conviction.
- 51.
That said, the criminal provisions regarding those drug crimes, which increased criminal sentences and imposed mandatory minimums, certainly conveyed a sense of moral condemnation to the individuals involved (Hernández 2014, pp. 1372–1375).
- 52.
Dan Markel has distinguished the two forms of communication of the social meaning of criminal punishment—communication to society and communication to the individual offender (Markel 2001, pp. 2206–2207).
- 53.
I plan to further explore these ideas in future research.
- 54.
For example, Cox and Rodriguez alluded to the fact that “lawmakers and the public regard immigration law as different from other regulatory arenas in fundamental ways,” one being the importance of the “illusion of democratic control over membership decisions” (Cox and Rodriguez 2009, p. 540).
- 55.
I build upon Margaret Taylor’s helpful analysis of detention’s deterrent messages towards potential arrivals from outside the country (Taylor 1997).
- 56.
As Teresa Miller stated, “A discourse that focuses on categories and sub-populations rather than individuals… serves different objectives than one based on moral or clinical judgments about individuals” (Miller 2003, pp. 653–654). While “safety and absconding rationales are capable of being directly applied to individual cases,” symbolic detention is not (Pistone 1999, p. 225).
- 57.
For example, Ayelet Shachar termed the “crucial realm of responsibility” of immigration regulators to “determine who to permit to enter, who to remove, and who to keep at bay” (Shachar 2009, p. 811).
- 58.
To illustrate the second scenario, some U.S. legislators criticized DHS for admitting the Boston Marathon bombers as asylees when they were children (Weigel 2013).
- 59.
As noted, DHS denied bail to 71 % of ICE arrestees on discretionary, not mandatory, grounds (NYU School of Law Immigrant Rights Clinic et al. 2012, p. 10).
- 60.
Here, Congress has passed the law, and ICE subsequently interpreted it as strictly as possible by requiring detention rather than ‘custody.’In future research, I plan to more fully delineate the public blame ascribed to each political branch actor, building on Cox’s and Rodriguez’s description of each’s enforcement functions (Cox and Rodriguez 2009, pp. 519–528). It is highly plausible, though, that Congress passed mandatory detention laws in order to shift the blame to the Executive for purportedly ‘causing’ crime. As Rodriguez said, “Congress never faces direct or exclusive blame for the rise of illegal immigration. Instead, it can easily deflect that blame to the president and the failure of his dysfunctional agencies to enforce the law…” (Rodriguez 2010, p. 1841).
- 61.
For example, one could envision legislation imposing mandatory immigration detention for drunk driving that results in death, rather than subway turnstile jumping.
- 62.
Gulasekaram argued that U.S. border fence initiatives reflect and reinforce the societal trespass analogy (Gulasekaram 2012, p. 176).
- 63.
- 64.
As Chacon surmised, “[t]he crime is not the underlying offense so much as it is the act of committing any transgression, whether great or small, while being present in the United States as a non-citizen” (Chacón 2007, p. 1890). I depart from Chacon in specifically analyzing detention pursuant to removal and by raising a different analogy than one to criminal law.
- 65.
Valverde noted that “practices of detention” play a role in creating “liminal citizenship” status (Valverde 2010, pp. 224–229).
- 66.
Indeed, prehearing mandatory detainees are treated worse than actual ‘arriving aliens’ in one respect—that prehearing mandatory detainees are ineligible for parole.
- 67.
Schuck, for example, justified prehearing detention of criminal aliens on the ground that it might prevent “twelve crimes a year” (Schuck 1996, p. 668).
- 68.
- 69.
As Sharon Dolovich noted, “a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens” (Dolovich 2011, pp. 266–267).
- 70.
Massey points out the circular causality of these two trends (Massey 2013, p. 11).
- 71.
For example, a New York study found that 74 % of those not detained but have a lawyer won their immigration removal proceedings, while even 18 % of those detained with lawyers won (New York Immigrant Representation Study 2011, pp. 363–364). New York City subsequently funded a pilot project to provide lawyers to the detained in immigration proceedings, and other cities are exploring similar efforts (Noferi 2012).
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Acknowledgements
I thank for feedback, guidance, and support Farrin Anello; Kristina Campbell; Stacy Caplow; Stewart Chang; Alina Das; Maryellen Fullerton; Maria João Guia; César Cuauhtémoc García Hernández; Geoffrey Heeren; Robert Koulish; Frances Kreimer; Juliet Stumpf; Yolanda Vasquez; the participants in the 2012 First Crimmigration Control Conference at the Universidade de Coimbra, Portugal; and the participants in the 2013 Emerging Immigration Law Scholars Conference at UC-Irvine, California. I also thank Setenay Akdag, Elizabeth Komar, and Rebecca McBride for excellent research assistance.
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Noferi, M. (2016). Mandatory Immigration Detention for U.S. Crimes: The Noncitizen Presumption of Dangerousness. In: Guia, M., Koulish, R., Mitsilegas, V. (eds) Immigration Detention, Risk and Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-24690-1_13
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