Detention as deterrent: denying justice to immigrants and asylum seekers

• Author: Maureen A. Sweeney/Sirine Shebaya/Dree K. Collopy
• Position: Law School Professor and Faculty Director of the Chacón Center for Immigrant Justice at the University of Maryland Carey School of Law/Executive Director of the National Immigration Project/Partner of Benach Collopy LLP in Washington, DC and the author of AILA's Asylum Primer
• Pages: 291-323

DETENTION AS DETERRENT: DENYING JUSTICE

TO IMMIGRANTS AND ASYLUM SEEKERS

MAUREEN A. SWEENEY, SIRINE SHEBAYA, AND DREE K. COLLOPY*

ABSTRACT

In the first year of the Biden administration, the United States finds itself in

a unique moment of opportunity to reimagine the historical (mis)use of immi-

gration detention as a means of deterring unauthorized migration and of dis-

suading immigrants from vigorously advocating for their legal rights. The

pandemic has significantly reduced the number of people in immigration

detention, which gives policymakers an opportunity to take stock of the

nation’s historical mass incarceration of immigrants and acknowledge its

substantial costs and the many viable alternatives.

This Article shines a light on the successive Obama and Trump administra-

tions’ wrongful use of detention to deter migration and limit due process as a

legal and policy matter and on the high human and financial costs of those

policies. U.S. immigration law permits the detention of immigrants solely for

the purposes of ensuring their appearance for removal proceedings and pro-

tecting public safety. However, a review of the two most recent administra-

tions’ actions shows that detention has been used as a cudgel designed to

make the U.S. immigration system daunting enough to deter people who

would otherwise seek to benefit from it. Detention takes a heavy toll—on a

human level and on our nation’s obligations to humanitarian protection, the

quality of legal process, and the national budget.

The Biden administration and a new Democratic-controlled Congress are

setting out to make their own mark on immigration policy. It is imperative

that before or as they do so, they carry out an unflinching assessment of the

efficacy and costs of current immigration detention policy, which runs afoul

of our national values, domestic and international laws, and common sense.

Doing so will reveal our distorted national immigration detention policy as

* Maureen A. Sweeney is a Law School Professor and Faculty Director of the Chacón Center for

Immigrant Justice at the University of Maryland Carey School of Law. Sirine Shebaya is the Executive

Director of the National Immigration Project. Dree K. Collopy is a partner of Benach Collopy LLP in

Washington, DC and the author of AILA’s Asylum Primer. Many thanks to Vanessa Reyes, Mariajuliana

Bermudez, Priyanka Shah, David Karpay, Susan McCarty and Jennifer Chapman for research assistance.

The authors are grateful to the organizers of the 2016 Crimmigration Control International Network of

Studies (CINETS) conference which inspired this collaborative paper. https://perma.cc/D7TM-CLB6. ©

2021, Maureen A. Sweeney, Sirine Shebaya, Dree K. Collopy.

291

one of the drivers of mass incarceration for people of color. Policymakers

should seize this unique opportunity to end it.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

A. The Persistent and Bipartisan Use of Detention as a

Deterrent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

B. The High Costs of Detention . . . . . . . . . . . . . . . . . . . . . . 297

C. A Moment of Opportunity and Decision . . . . . . . . . . . . . . 299

II. DETENTION OF ASYLUM SEEKERS AT THE BORDER ...... ........ 301

A. A Systematic Increase in the Use of Family Detention as a

Deterrent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

B. The Illegality of Detention-as-Deterrence. . . . . . . . . . . . . 305

III. PROLONGED DETENTION OF IMMIGRANTS FIGHTING REMOVAL FROM

WITHIN THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

A. The Mass Incarceration of Immigrants in the Interior of the

United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

1. “Mandatory” No-Bond Detention . . . . . . . . . . . . . . . 311

2. Excessively High Bonds ...................... 312

3. Punitive Practices and Conditions of Detention . . . . . . 314

B. The Illegality of the Current Interior Detention Regime . . . 317

C. The Policy Costs and Inconsistencies of Detaining

Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

IV. CONCLUSION ...................................... 323

I. INTRODUCTION

The United States finds itself in a unique moment of opportunity to reima-

gine the historical (mis)use of immigration detention as a means of deterring

unauthorized migration and of dissuading immigrants from vigorously advo-

cating for their legal rights. Nominally, U.S. immigration law permits the

detention of immigrants for the purposes of ensuring their appearance for re-

moval proceedings and of protecting public safety. In reality, for many years,

our national detention policy has improperly served to punish unauthorized

292 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:291

migrants in the hope of deterring future unlawful migration. Despite the tre-

mendous human and fiscal costs of detaining individuals and families for

civil immigration violations, the Department of Homeland Security (“DHS”)

in successive administrations has doubled down on detention

1

as one of the

principal cudgels to make the nation’s immigration system daunting enough

to dissuade those fleeing violence, extreme poverty, or a lack of opportunity

from trying to seek protection or litigating their claims to remain in the

United States.

2

The threat of detention—and detention in difficult conditions

—has been a primary element of government strategies to stem the flow of

migrants at our southwest border and in the interior. The recent Trump

administration used the detained status of thousands of asylum seekers as an

excuse to summarily expel them from the country with no asylum proceed-

ings, under cover of the COVID-19 pandemic (an order the Biden administra-

tion continues to enforce and rely on).

3

Detention takes a heavy toll—on a

human level for those locked up and their families, on our nation’s obliga-

tions to humanitarian protection, on the quality of legal process available to

those detained, and on our national budget (costing billions of dollars a year).

Nonetheless, it has become a U.S. strategy of choice to deter immigration,

fostering mass incarceration in the immigration system that mirrors and

amplifies the mass incarceration of people of color in the criminal legal sys-

tem. However, the pandemic has significantly reduced the number of people

in immigration detention, creating an ideal moment for immigration policy-

makers to rethink the use and misuse of detention, acknowledge its substan-

tial costs and the many viable alternatives, and discontinue the use of mass

incarceration of immigrants as a deterrence strategy. This Article seeks to

1. The average daily population maintained in ICE detention facilities in Fiscal Year 2020—in the

midst of a pandemic—was 33,724. U.S. IMMIGR. & CUSTOMS ENF’T, ICE Detention Statistics (Dec. 29,

2020), https://perma.cc/5WHH-2PRU. This average was considerably lower than the administration’s

original goal of 54,000 for the year because of COVID-19 and the closures of the borders. See U.S. DEP’T

OF HOMELAND SEC., Immigration and Customs Enforcement Budget Overview 6 (2020), https://perma.cc/

V2EW-AUJH. The fact that the average daily detained population remains in the tens of thousands during

the pandemic reflects the institutional inertia in the use of detention, which is borne out in the consistent

and the consistently rising numbers in non-pandemic years. In the midst of the pandemic, the Trump

administration sought congressional funding to increase the average daily detained population to 60,000

people. U.S. DEP’T OF HOMELAND SEC., FY 2021 Budget in Brief 3 (2020), https://perma.cc/F8VA-

SFBU.

2. Other such strategies DHS has used at the southwest border in the Obama and Trump administra-

tions include federal criminal prosecution for illegal entry and reentry, “metering” and other ways of

refusing access to the asylum system at ports of entry, the so-called Migrant Protection Protocols that

require asylum seekers to remain in precarious and sometimes life-threatening conditions in Mexico

while they pursue asylum claims in tent-courts across the border, and perhaps most famously, the forced

separation of parents and children at the border. See AM. IMMIGR. COUNCIL, Policies Affecting Asylum

Seekers at the Border 1–3 (Jan. 29, 2020), https://perma.cc/YR8P-BRA6; Muzaffar Chishti & Sarah

Pierce, Trump Administration’s New Indefinite Family Detention Policy: Deterrence Not Guaranteed,

MIGRATION POL’Y INST. (Sept. 26, 2018), https://perma.cc/P4MP-D7N9.

3. See Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending

Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg.

17060 (Mar. 26, 2020); HUM. RTS. WATCH, US: COVID-19 Policies Risk Asylum Seekers’ Lives (Apr. 2,

2020), https://perma.cc/G47P-AGL9. The Biden administration continues to rely on this order to

summarily expel noncitizens arriving at U.S. borders, with the exception of unaccompanied children. See

AM. IMMIGR. COUNCIL, A Guide to Title 42 Expulsions at the Border 1, 6 (Oct. 2021).

2021] DETENTION AS DETERRENT 293