Across the Sloping Meadow Floor: An Empirical Analysis of Preremoval Detention of Noncitizens

Published date01 September 2019
Date01 September 2019
DOIhttp://doi.org/10.1111/lasr.12413
Across the Sloping Meadow Floor: An Empirical
Analysis of Preremoval Detention of Noncitizens
Joan-Josep Vallbe
´Markus Gonza
´lez-Beilfuss
Barak Kalir
In many countries, the law permits state authorities to detain noncitizens
before deportation. Typically judicial decisions about preremoval deten-
tion must be made within a short period of time during which deportable
noncitizens are held in police premises, and depending on the country
detention may last just one month (e.g., France) or up to 18 months (the
Netherlands). While previous research has explored various dimensions of
noncitizen detention including the legal procedure, health consequences,
the condition of detention centers, and the lives of deportable noncitizens,
the empirical assessment of the determinants of decisions on preremoval
detention are largely unexplored. Using data from court proceedings of
police petitions of detention in Spain and a quantitative strategy, in this
article we undertake an empirical analysis of noncitizen detention combin-
ing personal background of deportable noncitizens, legal factors of the
case, and the behavior of different actors involved in the procedure. To do
it, we fit models that take into account variation occurred at judicial district
levels. Results indicate, on the one hand, that relevant actors involved in
the procedure use different informational cues to decide on cases. On the
other hand, the role of prosecutors and attorneys during hearings proves
also relevant to predict detention.
Introduction
The conditions under which the police can detain deportable
non-citizens, as well as the length of detention and the rights of
detainees, vary among EU member states, sometimes dramatically
(European Migration Network 2014). For example, in the
The work presented in this article has received funds from the project The Social Life
of State Deportation Regimes: A Comparative Study of the Implementation Interface ERC-
2013-StG-336319), University of Amsterdam. The authors would like to thank Ju
´lia
Tere
´s, Martı
´Bonilla, and Paula Regueira for their work in data collection. This work was
presented at the research seminar of the Political Science Department of the University
of Barcelona and the authors would like to acknowledge their participants’ insightful
comments and constructive criticism. The first line of the title of this article corresponds
to a verse in Robert Grave’s poem ‘‘Country at war” from his homonymous book pub-
lished in 1920.
Please direct all correspondence to Joan-Josep Vallbe
´, Department of Political Sci-
ence, Constitutional Law and Philosophy of Law, University of Barcelona, Barcelona,
Spain; e-mail: vallbe@ub.edu
Law & Society Review, Volume 53, Number 3 (2019): 740–763
©2019 Law and Society Association. All rights reserved.
740
Netherlands, non-citizens can be detained for an uninterrupted term
of up to six months. This term may be applied up to three times,
leading to a maximum detention term of 18 months. In France, in
sharp contrast, the maximum detention term stands at 45 days. Span-
ish law permits the detention of deportable non-citizens for a period
of up to 60 days. Because these figures imply serious consequences
on the liberty of non-citizens, not only deportation but also pre-
removal detention in centers for deportable non-citizens can have
serious consequences on the lives of thousands. In recent years, the
detention and deportation of non-citizens is increasingly being stud-
ied from different disciplines. Important studies have been con-
ducted on the conditions in detention centers (Bosworth 2014), the
role of NGO’s in the process of detention and deportation (Fischer
2012; Kalir and Wissink 2016), the lives of deportable subjects before
and after their expulsion (Andrijasevic et al. 2010; Kalir 2010), the
effect of deportability on attitudes toward state authorities (Cavanagh
and Cauffman 2015), as well as the legal infrastructure that regulates
detention and permits deportation (Kanstroom 2007).
The detention and deportation of non-citizens are increasingly
topping political and public debates in countries worldwide, lead-
ing some scholars to talk of a “deportation turn” (Gibney 2008) as
part of a wider process known as the “securitization of migration”
(Bourbeau 2011; Huysmans 2006). This process of securitization
intensifies the intersection between criminal law and immigration
law, or what is now widely known in legal circles as the phenome-
non of crimmigration (Stumpf 2011). While in recent years
pre-removal detention is mostly executed in specially designated
facilities and not in penitentiary ones, it still crucially involves the
sanctioning of ones’ fundamental right for the freedom of move-
ment. As such, the legal decision to detain a potential deportable
non-citizen calls for much prudence, not least because of the very
serious social, economic and medical consequences for detainees
and potentially also for their families (Puthoopparambil and Bjer-
neld 2016; Robjant et al. 2009; Storm and Engberg 2013).
Like many other state projects, deportations can suffer from
an implementation “deficit” or “surplus” (Kalir 2017): they are
carried out by state agents who act as “petty sovereigns” (Butler
2004), exercising much discretion in interpreting and applying
the rules and regulations on the ground, according to their values
and worldviews (Chan 1996; Lipsky 1980). The case of deporta-
tion is particularly interesting, because governments may decide
deliberately to delegate much power and discretion to the execu-
tive branch, and to pursue levels of implementation that are
impossible to draft as formal regulations, because they are either
politically controversial or in violation of international conventions
and human-rights standards (Fekete 2005). This amplifies, in
Vallbe
´, Gonza
´lez-Beilfuss, & Kalir 741

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