Monday, March 12, 2018

Administrative Incarceration: The Paradox of Immigration Detention

Guest blogger: Elizabeth Bird, University of San Francisco masters student, International Studies:

In 2017, over 320,000 immigrants were placed in detention in the United States, awaiting determination of their immigration status. Immigration and Customs Enforcement (ICE) can detain anyone who is suspected of being deportable and is deemed to be likely to abscond. This includes a range of noncitizens: individuals who have crossed the border without documentation, have overstayed their visa, or legal residents who have committed certain crimes. According to the government, immigration detention is an administrative procedure. Legally, immigration detention is not punishment, but in practice, it looks a lot like penal incarceration. Furthermore, the non-punitive nature of immigration detention results in fewer protections for immigrants than would be afforded to criminal defendants.

According to the Supreme Court, immigration detention cannot legally be classified as punishment: to punish immigrants for simply being in the country unlawfully would be unconstitutional. In 1986, the Supreme Court determined that to do so would be to “pass out of the sphere of constitutional legislation” (Wong Wing v. United States). Yet, conveniently, the court determined that detention – unlike hard labor, the issue under discussion in the case – does not amount to punishment.

Yet the conditions that immigrants face in detention are similar – if not worse – to conditions in penal incarceration systems. Immigration detention centers are often high-security facilities in remote locations, surrounded by barbed wire, made up of cells where immigrants may be housed alongside criminals and patrolled by guards in prison uniforms. Immigrants are subject to physical and verbal abuse and face extreme difficulties accessing medical treatment. A recent report by Human Rights Watch found that some immigrants are held in freezing conditions and denied basic hygiene.

Furthermore, many immigrants are detained as a result of committing crimes, despite the fact that they have already served their criminal sentence. Regardless of legal status, any noncitizen who is convicted of an aggravated felony or two crimes of “moral turpitude” – a classification that includes minor, non-violent crimes such as petty theft – is subject to mandatory detention and deportation. These individuals are viewed as posing a “danger to society,” even though they have already served as much time in prison as a citizen would have. It is hard to conceive of the detention of these individuals as anything but additional punishment.

In order to explain the non-punitive nature of detention, the Supreme Court compared immigrant detention pending deportation decision to criminal detention pending trial. In the latter case, an innocent person may be legally arrested and detained before he is charged with a crime. Although it might look like imprisonment, this sort of detention “is not imprisonment in a legal sense” (Wong Wing v. United States). At first this analogy seems to make sense. In criminal law, someone who has been arrested, but not yet charged, can be held for a “reasonable” period of time. In immigration law too (according to the 2001 Supreme Court decision, Zadvydas v. Davis) an immigrant can be detained awaiting deportation for a “reasonable” period. Yet the legal interpretations of “reasonableness” in these two cases differ vastly. In criminal law, the reasonable period is usually held to be 72 hours – in some states just 48 hours. In immigration law, this period can be up to six months.

The classification of detention as civil rather than criminal is not only a symbolic issue. Because of this classification, immigrants are denied constitutional rights that are afforded to individuals in the criminal justice system. One of the most problematic issues is lack of access to counsel: a right that is afforded to all criminal defendants under the 6th Amendment. In 1975 the Court of Appeals for the 6th Circuit determined that access to counsel would make little difference to individuals in deportation proceedings, affirming the denial of government-appointed counsel to immigrants as constitutional (Aguilera-Enriquez v. INS).

Yet studies have found the opposite is true. A 2016 study by the American Immigration Council found that immigrants with attorneys fare better at every stage of the court process. The study found that, between 2007 and 2012, just 14% of detained immigrants were able to secure legal representation. This had a profound effect on the outcome of their immigration proceedings: represented immigrants who had a custody hearing were four times more likely to be released from detention than those without access to counsel.

If immigration detention is to be labelled as non-punitive, it should be non-punitive. If it continues as it is, then immigrants should – at the very least – be granted the same rights that they would be in the criminal justice system. Administrative detention may be a necessary element of immigration enforcement, but penal incarceration should not be.


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Good points made eloquently. Well said!

Posted by: Virginia Bird | Mar 12, 2018 8:24:48 AM

Great article, but note the typo: Wong Wing v. United States was decided in 1896, not "1986."

Posted by: David Wilson | Mar 16, 2018 8:28:09 PM