Arbitrary detention? The immigration detention bed quota.

Introduction

Thirty years of failed federal immigration law reform efforts have

changed the way U.S. immigration policies are made. Rather than doing

nothing about the approximately eleven million undocumented immigrants

living in the country, (1) entities beyond the federal legislative

branch have gotten involved in the regulation and enforcement of

immigration. In fact, "the great bulk of contemporary immigration

policymaking stems not from Congress, but rather from executive branch

agencies and states." (2)

This modern version of American immigration policymaking raises

novel questions as to which governing bodies can, or from a public

policy perspective should, regulate and enforce immigration laws. one

set of inquiries involves states legislating immigration control

measures, (3) a type of contemporary immigration policymaking. (4) The

most prominent example is Arizona's Support Our Law Enforcement and

Safe Neighborhoods Act, commonly referred to as S.B. 1070. The U.S.

Supreme Court in 2012 struck down three of the statute's four

provisions challenged by the Obama Administration. (5) The Court

withheld judgment on the constitutionality of S.B. 1070's

"show your papers" or "papers please" provision, (6)

which requires police officers to determine the immigration status of

any person they lawfully stop, detain, or arrest if "reasonable

suspicion exists that the person is an alien and is unlawfully present

in the United States." (7) Since the Arizona v. United States

decision, restrictive immigration state laws have been on the downturn.

(8)

The other recent manifestation of contemporary immigration policy

making is executive orders, namely Deferred Action for Childhood

Arrivals (DACA) announced by President Obama in June 2012, and expanded

DACA and Deferred Action for Parents of Americans and Lawful Permanent

Residents (DAPA) announced in November 2014. (9) The second executive

actions were enjoined by the Southern District of Texas, (10) on the

grounds that the programs exceed the President's immigration power.

(11) The Fifth Circuit affirmed the District Court's decision. (12)

This case then went up to the Supreme Court, (13) and in June of 2016,

the Supreme Court in a 4-4 tie failed to provide guidance on the proper

allocation of immigration powers between the Executive and Congress.

(14)

This Article circles back to a traditional site of immigration

policymaking, namely Congress, to examine the extent to which the

Legislature can prescribe the Executive branch's enforcement of

immigration law. Importantly, it does so taking into account the context

of modern immigration policymaking. The federal legislative act that is

the inquiry of this Article is the immigration detention bed quota

Congress mandates through the U.S. Department of Homeland

Security's (DHS) appropriations process. (15) The provision was

first introduced when President Obama took office in 2009, and ties

DHS's funding to maintaining a minimum number of detention beds per

day. (16) The quota, initially 33,400 beds, today sets the daily minimum

number of immigration detention beds DHS shall maintain at 34,000. (17)

This Article explores the legality of the detention bed quota, namely

whether the quota violates the Due Process Clause of the Fifth Amendment

to the United States Constitution, and international human rights law

limitations on arbitrary detention.

There are also policy considerations that this Article will explore

with relation to the detention bed quota. First, law enforcement quotas

generally contravene agency or individual officers' discretion in a

manner that is not in the best interest of society. (18) A long-standing

part of the immigration enforcement regime has been prosecutorial

discretion, specifically that "[a] favorable exercise of

prosecutorial discretion in immigration law identifies the agency's

authority to refrain from asserting the fully scope of the agency's

enforcement authority." (19) The Supreme Court's deadlock in

United States v. Texas leaves in place the lower court's injunction

of the Executive's DAPA and expanded DACA programs. (20) In doing

so, it remains unresolved whether the President's power of

prosecutorial discretion in immigration law includes the authority to

create such programs. (21) While it is still an open question for some

whether the President should be able to implement these deferred action

programs, the judicial impasse in United States v. Texas does not

implicate the Executive's longstanding discretion over immigration

enforcement. As such, agency discretion over non-citizen removal and

detention remains both an important component of modern immigration

policymaking and, more specifically, a crucial consideration when

examining the Congressional immigration bed quota.

Second, quotas generally have demonstratively compelled action that

runs counter to core democratic principles of non-discrimination and the

deprivation of liberty interests as a last resort. For example,

enforcement quotas have been linked to police officers using racial

profiling. (22) The immigration bed quota specifically delinks detention

decisions from individualized determinations concerning public safety.

As articulated by a former Immigrations and Customs Enforcement (ICE)

director:



Having a mandate out there that says you have to detain a certain

number--regardless of how many folks are a public safety threat or

threaten the integrity of the system - doesn't seem to make a lot

of sense. You need the numbers to drive the detention needs, not

set an arbitrary number that then drives your operation. (23)

The Congressional bed quota has resulted in unprecedented detention

numbers. (24) Since 2009, "the number of non-citizens DHS detains

yearly has increased by nearly 25 percent." (25) And this practice

comes at a considerable price. Generally, with regard to immigration

enforcement, "[t]he US government spends more on its immigration

enforcement agencies than on all its other principal criminal federal

law enforcement agencies combined." (26) The expenditure of these

funds for detention largely lines the pockets of for-profit

corporations, because more than half of immigration detention beds are

operated by private prison corporations. (27) The profits generated by

these corporations' immigration detention operations grew after

Congress passed the bed quota. (28) And the lobbying expenditures by

these prison companies, including those spent on Congress members on the

Appropriations Committee, (29) has ensured that the spike in detention

beds remains the status quo.

One could argue that just because Congress requires that DHS

"maintain" a specific number of beds does not mean that the

Executive needs to fill them. This is not the view of certain

legislators and DHS officials. one of the most recent examples is

statements made by Representative John Culberson (R-TX), who said,

"he expects the obama Administration to find enough illegal

immigrants to fill the detention beds Congress funds--or face budgetary

consequences." (30) Moreover, corporations with whom the agency

contracts to operate over half of the detention system often get paid

regardless of whether the beds are occupied. (31) In any case, an

interpretation of the statutory language of the bed quota as only

requiring the agency to ensure 34,000 beds are available per day (not

filled) is still troubling from a policy perspective.

This Article proceeds as follows. Part I presents the legislative

history of Congress's inclusion of the immigration bed quota in the

DHS Appropriations bill, including opposition to the measure by both

Congress members and civic society. It weaves in both private prison

corporations and the role that quotas have played in law enforcement

generally, and in particular U.S. immigration law. Part II begins with a

Due Process analysis of the Congressional immigration detention bed

quota under the Fifth Amendment of the U.S. Constitution. It summarizes

the historical and current jurisprudence of due process limitations on

immigration detention and examines how the bed quota fares. Part II also

applies international human rights law implicated by Congress's

imposition of a detention quota. Part III raises policy considerations

relevant to both the relationship between Congress and the Executive

branch on the issue of immigration enforcement and American society at

large.

I. BACKGROUND

The immigration enforcement scheme, including detention, is a

civil, not criminal, system. (32) This distinction, however, is

virtually a legal fiction. (33) Immigration detention facilities, even

those holding women and children, look and operate like prisons. (34)

DHS contracts with prisons and jails, and so immigration and criminal

detainees are also held together, side by side in the same facilities.

(35)

Since the creation of the modern federal immigration system in 1965

with the enactment of the Immigration and Nationality Act (INA),

detention was not a significant or even active component of immigration

enforcement. (36) Today, however, this history is barely believable, as

the detention of non-citizens in the United States is currently the

country's largest detention system. (37) The most recent chapter of

this story involves Congress's immigration detention bed quota.

The immigration detainee population, which was already on the

steady rise, increased by twenty five percent after Congress included

the quota in DHS's appropriations in 2009. (38) Former New York

District Attorney Robert Morgenthau, amongst others, (39) ascribes the

unprecedented immigration detention numbers to the detention bed quota

in DHS' appropriations bill:



On any given day, Immigration and Customs Enforcement keeps at

least 34,000 immigrants locked up while they wait for their cases

to be heard in immigration court. Many of these detainees are

incarcerated not because they are dangerous or likely to skip their

court dates, but because ICE must meet an arbitrary quota set by

Congress. (40)

Morgenthau points out that the immigration detention bed quota is

starkly unique: "No other federal or state agency is required by

law to detain a specific number of people without any regard to whether

the quota makes sense from a law-enforcement perspective." (41) The

detention of immigrants currently costs over 2 billion dollars per year,

which provides a considerable financial incentive for both private

prison companies and local governments looking to pull in revenue for

struggling state, county, and municipal budgets. (42)

This Part presents the legislative history of the bed quota,

including considerable opposition to the measure. It then links the bed

quota to the prevalence of private prison corporations in the

immigration detention system, and concludes with an examination of

quotas from the perspective of law enforcement generally, and within the

historical context of immigration law specifically.

A. The Bed Quota's Legislative History

The immigration detention bed quota is a product of one line in

DHS's custody operations budget. That line, inserted by Congress

for the first time (43) in DHS's Fiscal Year (FY) 2010 budget,

reads: "Provided further, [t]hat funding made available under this

heading shall maintain a level of not less than 33,400 detention beds

through September 30, 2010." (44) The number of beds increased to

34,000 in 2012, (45) which is the number contained in the last DHS

Appropriations bill passed in July of 2015. (46)

The legislative movement culminating in this bed quota began in the

aftermath of the 9/11 terrorist attacks. (47) In 2004, Congress passed

the Intelligence Reform and Terrorism Prevention Act (IRTPA), which was

the first mandate for a stated number of immigration detention beds.

(48) Although a precursor to today's bed quota, IRTPA was different

because it directed DHS to increase the "number of beds available

for immigration detention." (49) The legislation also required that

the expansion of immigration detention bed capacity be contingent on

"the availability of appropriated funds." (50)

The immigration detention bed quota that operates today was

introduced during President Obama's first year in office by the

late Democratic Senator Robert Byrd from West Virginia, then Chairman of

the Appropriations Subcommittee on Homeland Security. (51) Speaking on

behalf of Senator Byrd, (52) Illinois Democratic Senator Richard Durbin

presented the five goals that Senator Byrd had for the new provision:



No. 1, securing our borders and enforcing our immigration laws; No.

2, protecting the American people from terrorist threats and other

vulnerabilities; No. 3, preparing and responding to all hazards,

including natural disasters; No. 4, supporting our State, local,

tribal and private sector partners in homeland security with

resources and information; and finally, giving the Department the

management tools it needs to succeed. (53)

These stated objectives, however, do not tell the whole story.

Congress's switch from legislating for increased immigration

detention capacity to a detention quota was not happenstance--it came at

a time when a new, Democratic President announced that he would be more

focused on the country's economic recession than immigration

policy. (54) On the one hand, this meant that comprehensive immigration

reform would be unlikely, but on the other hand, detaining non-citizens

may provide for jobs. (55) It also was a time, likely because of the

recession, when the U.S. was experiencing "a multi-year decline in

the undocumented immigration population." (56) From a fiscal policy

perspective, it seems peculiar that Congress would mandate such high

detention rates at taxpayers' expense when unauthorized migration

had fallen by more than fifty percent since the recession began. (57) In

fact, Representative David Price, the then-Chair of the House Committee

on Appropriations Homeland Security Subcommittee, reportedly tried to

prevent the quota's inclusion, stating later that "[i]t's

not just pressure, ... [i]t's a requirement that [DHS] choose one

course rather than the other, when the alternatives to detention would

be less expensive and equally effective." (58)

1. Opposition to the Bed Quota

Advocacy groups have had a steadfast focus on eliminating the

immigration detention bed quota. In particular, Grassroots Leadership,

Detention Watch Network, and the Center for Constitutional Rights have

presented how the quota is inextricably linked to private prison

corporate interests. (59) In 2014, over one hundred non-governmental

organizations submitted a letter to Congress stating, inter alia, that

ICE's daily detention level should be determined only by actual

need and that the quota is contrary to proven best practices in law

enforcement. (60) In 2013, a significant faction of Congress also raised

their concerns. Sixty-five members of Congress signed a letter to the

White House in opposition to the bed quota, characterizing the provision

as compromising the agency's "ability to satisfy its stated

enforcement priorities and accomplish detention reform[,]" contrary

to constitutionally protected due process protections, and a waste of

taxpayer dollars. (61)

In 2012 the House Committee on Appropriations issued a report on

the FY 2013 proposed budget that recommended that Congress raise the

detention bed quota from 33,400 to 34,000 beds. The House at this time

was controlled by Republicans, and the "minority views"

section of the report, i.e. by the Democratic members, voiced a

different perspective. This section was entitled "Burdensome

Immigration Provisions," and stated that "the use of those

beds should be determined by the enforcement actions and judgment of ICE

on whether detention is required for particular detainees." (62) It

concludes by stating: "We are unaware of any other law enforcement

agency with a statutory requirement to detain no less than a certain

number of individuals on a daily basis." (63)

In 2013, two representatives introduced an amendment to the DHS

Appropriations Act of 2014 that would have removed the bed quota.

Representative Ted Deutch, one of the amendment's co-sponsors, said

this: "Arbitrary quotas that dictate how many people to keep in

jail each day have no place in law enforcement .... The detention bed

mandate forces immigration enforcement officials to focus on filling

beds in expensive private detention facilities at the expense of

taxpayers and hardworking, decent families." (64) The amendment

failed 232 to 190, with the votes largely casted along party lines. (65)

The following term, sixty members of Congress signed a letter urging for

the end of the detention bed quota. (66)

During this time, the Obama Administration stated the quota was

about 2,000 more beds than it deems necessary, which critics of the

quota pointed out "represent[s] an added cost of about $132 million

a year." (67) Notably, in each of the five years since Congress

included the quota into DHS's annual appropriations, President

Obama's proposed budgets have never included the bed mandate

language. (68) In fact, in one year--in 2014 for FY 2015--the

President's budget request included a request to eliminate the

quota, stating the number of beds maintained should be based on actual

need. (69)

Facing the threat of a government shut-down, ICE in 2013 released

2,228 detainees to save costs. (70) This action was immediately

reprimanded by the House of Representative's then-Chair to the

Homeland Security Committee as a "clear violation of statute,"

(71) a reference to the bed quota in DHS's Appropriations bill. The

agency was summoned to Congress to explain its actions. During this

April 2013 Congressional hearing, then-DHS Secretary Janet Napolitano

called the quota "artificial" and stated that lowering the

quota would allow the agency to provide alternatives to detention for

low-risk, nonU.S. citizens facing removal: "We ought to be

detaining according to our priorities, according to public-safety

threats, level of offense and the like, ... not an arbitrary bed

number." (72)

Two years later, however, a Congressional appropriations committee

member suggested doubling down on the bed quota. During an April 2015

hearing on the Immigration and Customs Enforcement budget,

Representative John Culberson (R-TX), after a heated back and forth with

then-ICE director Sarah Saldana, suggested that the current language in

the DHS appropriations bill should be amended to substitute the word

"maintain" with "fill." (73)

Representative Culberson's comment demonstrates how, despite

the formidable opposition to the bed quota, proponents steadfastly

support the provision as a key component of DHS's appropriations.

Private prison corporations, the main benefactors of the bed quota, are

a significant part of the reason why.

B. The Detention Bed Quota and Prison Corporation Profits

The private prison industry has a dominating presence in the U.S.

immigration detention system, a fact inextricably related to the

immigration detention bed quota. Corporate control over much of

immigration detention is a phenomenon that emerged in the criminal

justice context, amidst the political climate of the 1980s marked by the

"War on Drugs." (74) With waning opportunities to maximize its

profits in the criminal justice setting, the 9/11 terror attacks opened

the door for the private prison industry to see its next market share in

the immigration detention business. This is because the policies that

comprised the "War on Terror" involved heightened enforcement

against non-citizens, including detention. It is important to note,

however, that the majority of immigration detention beds were turned

over to these for-profit entities for reasons other than their track

record:



For-profit prisons did not enter the immigrant detention business

based on a track record of successfully providing detention

services. The rise of this industry has been attributed to a

combination of factors, including the trend toward privatization of

government services, the ability of private contractors to create

detention capacity more rapidly than government ..., rising demand

for detention and prison beds ..., and the lack of accountability

to DHS-ICE by state and local contractors. (75)

The first privately owned immigration detention facility was opened

in 1984 by Corrections Corporation of America (CCA), (76) and the GEO

Group (GEO) received its first immigrant detention contract in 1987.

(77) The era described as the "War on Immigrants" (78) brought

about by the legislative criminalization of immigrants created the

opportunity for private companies to get into the business of

incarcerating immigrants. Today, private companies operate sixty-two

percent of the immigration detention beds (79) and run nine out of ten

of the largest immigration detention centers. (80)

The bed quota has been linked to the fact that detention costs for

undocumented immigrants have more than doubled since 2006, to the

present figure of $2.8 billion annually. (81) Detention costs have

steadily increased despite the fact that the unauthorized entry at the

U.S. border have dropped by two-thirds. (82) Correspondingly, the

private corporations' profits have soared. CCA and GEO have

expanded their share of the private immigrant detention industry from

thirty seven to forty five percent in 2014, and have experienced

dramatic profit increases: CCA's profits increased from

$133,373,000 in 2007, to $195,022,000 in 2014, and GEO's profits

increased 244 percent. (83)

Morgenthau explains the illogical story told by these statistics by

casting the bed quota alongside corporate interests: "The

persistence of th[e] detainee quota is less surprising in light of the

fact that for-profit private prisons hold more than half of all

immigration detainees." (84)

One explanation for the bed quota's endurance is that it is

linked to Congress members' concerns about maintaining the flow of

money and jobs into their states and districts. (85) An explicit example

is a question during the March 2013 House Judiciary Committee hearing

posed by Pennsylvania Republican Representative Tom Marino, to then-ICE

director Morton: "Why not take advantage--more advantage--of

facilities like this [where it costs $82.50 per day per detainee], and

particularly in Pike County [Pennsylvania], who built a whole new

facility just to house these individuals?" (86)

The other way in which profit-driven interests help make sense of

the bed quota's persistence relates to the private prison

industry's spending. (87) The two corporations that have come to

operate most of the immigration detention beds companies have

considerable lobbying expenditures: CCA has spent over $13 million on

lobbyists since 2005, including lobbying staff for the Senate

Appropriations Committee. (88) During this same period, GEO spent more

than $2.8 million on lobbying efforts. (89)

Professor Philip Torrey demonstratedthat for-profit prison

companies' lobbying and campaign contributions seemed to have paid

off. One example is in 2005, when the industry spent about $5 million

dollars, and then "[o]ver the next two years, ICE's budget

jumped from $3.5 billion to $4.7 billion." (90) By 2012, for-profit

prison companies held federal contracts worth approximately $5.1

billion. (91) Representative Adam Smith (D-Wash) definitively linked the

detention bed quota to corporate profits, stating, "Frankly, I

think if you eliminate the bed mandate, that's the first step

toward eliminating privatization, because that's a huge thing

that's driving their profits." (92)

1. Contractual Occupancy Rate Guarantees

Occupancy guarantee clauses, also known as "lockup

quotas," (93) are characteristic of for-profit prisons in the

criminal prison context. Since 2003, (94) private prison corporations

have promoted and operated prisons under contracts with state and local

governments which involve occupancy guarantee clauses for the duration

of the contract term. (95) In 2013, three private prison companies in

Arizona had contracts with the state that contained 100 percent inmate

quotas, meaning the state is contractually obligated to keep these

prisons filled to 100 percent capacity, or pay the private company for

empty beds.96

A September 2013 report published by In the Public Interest (ITPI)

on prison bed occupancy guarantee clauses in the criminal prison context

analyzed private prison contracts between states and local

jurisdictions. ITPI identified seventy-seven such private facilities

nationwide and analyzed sixty-two contracts. Of those contracts,

sixty-five percent contained capacity quotas between 80 and 100 percent.

(97) Amongst the negative effects of occupancy guarantee contractual

clauses is that they "incentivize keeping prison beds filled, which

runs counter to many states' public policy goals of reducing the

prison population and increasing efforts for inmate

rehabilitation." (98) A related consequence of these clauses has

been called the "low-crime tax," meaning that since state or

local governments have to pay corporations for unused beds, taxpayers

are effectively penalized when their government achieves what should in

theory be the goal of lower rates of incarceration. (99)

Unsurprisingly perhaps, prison corporations have brought over

occupancy guarantee clauses to their business dealings with ICE. Drawing

upon data received from a Freedom of Information Act (FOIA) request, the

advocacy groups Detention Watch Network and the Center for

Constitutional Rights published a report on this practice in the

operation of immigration detention facilities. The occupancy guarantees

function similarly to those in the criminal context, with an additional

feature called "tiered pricing," in which ICE receives a

discount on each person detained above the guaranteed minimum."

(100)

The report states that the CCA was the first in 2003 to include an

occupancy guarantee in their contract. (101) In the intervening years,

these clauses have increasingly been a part of contracts between ICE and

private contractors both for detention operations and detention related

services. (102) The report also found that "although guaranteed

minimums are found formally only in contracts with private companies,

subcontracting ... means that private companies can be involved and

minimums can occur in all three types of contract categories[,]

including public facilities...." (103) Today, out of ICE's

Enforcement and Removal's 24 field offices, half have occupancy

guarantees. (104) Beyond the increase in the frequency and breadth of

these contractual terms, the occupancy minimums have gone up

dramatically. (105)

The Detention Watch Network and Center for Constitutional

Rights' FOIA request uncovered explicit evidence that ICE

prioritizes keeping the detention facilities with occupancy guarantees

full over those that do not have such contractual obligations. In an

email from two ICE Enforcement and Removal Operations headquarter

officials, local field offices were advised that "[t]he first

priorities for funding are the 11 [field offices] that have detention

facilities with guarantee minimum beds." (106)

The prevalence and influence of occupancy guarantees in ICE

contracts with private prison companies recently gained the attention of

some Congress members. In 2015, House Representatives Deutch (D-TX),

Foster (D-IL), and Smith (D-WA) introduced "The Protecting

Taxpayers and Communities from Local Detention Quotas Act." (107)

The bill, which was not voted out of subcommittee, (108) prohibits ICE

from "negotiat[ing] with a private detention company a contract

that contains any provision relating to a guaranteed minimum number of

immigration detention beds at any specific facility." (109) During

a press conference introducing the bill, Representative Deutch said this

about occupancy guarantee clauses:



As a businessman, I know that incentives can drive demand

incentives like [contractual occupancy guarantees] create an

artificial demand for immigrant detention. While we continue

efforts to eliminate the detention bed mandate, ending these

prepaid detention contracts is one step towards making our

immigration practices more humane and fiscally responsible. (110)

Nonetheless, these contracts prevail in the immigration detention

system: As of June 2016, occupancy guarantees in contracts between ICE

and private prison corporations account for approximately 13,000 beds

per day, or about forty percent of the detention bed quota. (111)

The affinity between the contractual occupancy guarantees and the

bed quota in DHS's appropriations legislation is evident from this

exchange during a 2013 House Judiciary Committee hearing between

Representative Henry Johnson and then-ICE director John Morton:



Mr. Johnson. If [privately-run] beds are unfilled, is there is a

requirement that the Federal Government pay the private

contractor?



Mr. Morton. Yes.... We do our very best not to have empty beds.



Mr. Johnson. It is kind of like you want to fill the beds up so

that you will not be paying for something that you are not using.

Is that correct?



Mr. Morton. This is correct. Obviously, if Congress appropriates us

money, we need to make sure that we are spending it on what it was

appropriated for.



Mr. Johnson. And so we got a guaranteed payment to private,

nonprofit [sic] corporations like ... Corrections Corporation of

America.... (112)

The justification for occupancy guarantees, contractual and in

DHS's appropriations legislation, appears to have less to do with

needs related to sound immigration policy than about private

prisons' profits.

2. The Momentum to Curtail Private Prisons Because of practices

like occupancy rate guarantees, the federal government in the criminal

justice system has begun to cut back on its use of private prisons. On

August 18, 2016, the Department of Justice (DOJ) announced that it would

begin phasing out the contracting of federal prison facilities with

private prison corporations. (113) The DOJ has directed the Bureau of

Prisons (BOP) to either decline renewing private contracts coming to an

end, or to "substantially reduce its scope in a manner consistent

with the law and the overall decline of the [B]ureau's inmate

population." (114)

Soon after the DOJ announcement, several members of Congress have

pressed DHS to follow suit. (115) Senator Bernie Sanders (I-Vt.) and

Representative Raul Grijalva (D-Ariz.) sent a letter to DHS Secretary

Jeh Johnson calling for the agency to end its use of private detention

facilities. (116) The letter highlights that like their criminal

counterparts, private detention centers, have significant problems,

including higher reported incidents of abuse and violence and less

access to medical care than government-operated facilities. (117)

Secretary Johnson announced that DHS will review the "current

policy and practices concerning the use of private immigration detention

and evaluate whether this practice should be eliminated." (118)

Secretary Johnson's announcement was met with internal

opposition. ICE and the Customs and Border Patrol have said that ending

private detention facilities would lead to overcrowding and compromise

the agency's ability to ensure border security. (119) Immigrant

rights advocates critiqued the fact that the Secretary announced a

review in the first instance, stating that the agency already has the

information it needs to know that contracting with private corporations

is not good policy. (120) Advocates and scholars also have questioned

whether the alternatives, namely government-run facilities and ankle

bracelet monitoring, are progress from the vantage of noncitizens. (121)

It is unlikely that DHS would be able to meet the current immigration

detention bed quota without contracting with private corporations, and

so at the very least a decision to end corporate contracts to detain

noncitizens could deliver the final blow to the provision.

C. The Problem with Quotas Generally

The immigration detention bed quota is a stark example of the

difference between what is beneficial to corporate profits and what is

good public policy. The quota constitutes a "statistical

approach" to law enforcement, emphasizing more--instead of

better--enforcement. (122) It also replaces systemic ways in which to

promote public safety, such as community policing, with quantitative

measures of citations, arrests, and convictions. (123) And while the

underlying motivation for imposing law enforcement quotas is to manage

police officers who have considerable independence, "meeting a

numerical goal does not necessarily have the intended effect on the

targeted offense." (124)

There have been numerous advocacy efforts challenging quotas in the

policing context, one high-profile example being the litigation against

the New York Police Department's (NYPD) stop-and-frisk practice.

(125) Moreover, arrest and ticket quotas are banned by law in many

states, including New York, Illinois, California, and Florida. (126)

Nonetheless, number-based policing remains if not explicitly, then an

unsaid but understood performance standard. As one former NYPD officer

put it, "[t]he culture is, you're not working unless you are

writing summonses or arresting people." (127) The Police Executive

Research Forum (PERF) estimates that 18,000 police departments across

the country likely impose quotas on their officers. (128)

PERF's executive director describes the problem with quotas

this way: "there is an understandable desire to have productivity

from your officers[,] ... but telling them that you want to arrest x

number of people, you have to cite x number of people, it just

encourages bad performance on the part of officers." (129) A swath

of bad performance resulting from enforcement quotas is the

disproportionate impact of police contact and incarceration on poor

communities of color. (130)

NYPD's stop-and-frisk practice, (131) tied to

"productivity measures," (132) disproportionately affected

Black and Latino men.133 Police officers of color have claimed that

quotas disproportionately impact them in relation to their White

counterparts, because they "are unwilling to perform racially

discriminatory and unwarranted enforcement actions against the minority

community." (134) Racial profiling has also been identified as a

problem in the immigration enforcement context. Much of the advocacy and

scholarship about this issue focuses on enforcement against Latinos and,

particularly after the 9/11 terrorist attacks, South Asian, Arab, and

Muslim non-citizens. (135) Another aspect of racial profiling in

immigration enforcement that is equally concerning, but has received

less attention, is its impact on black immigrants. A report by the Black

Alliance for Just Immigration and the Immigrant Rights Clinic at New

York University School of Law finds that more than one in five

non-citizens facing removal on criminal grounds is black, even though

black non-citizens comprise seven percent of the total non-citizen

population.136 The study also revealed that black non-citizens are more

likely to be detained and deported for criminal convictions than other

non-citizens group.137 With this context, mandating that tens of

thousands non-citizens be detained each day seems particularly

troublesome.138

3. U.S. Immigration Law's History with Quotas

The other contextual lens that renders the detention bed quota

particularly objectionable is the historical use of quotas in U.S.

immigration law. The turn of the twentieth century in the United States

brought about a spike in immigration due to labor demands spurred by the

Industrial Revolution, and Congress responded by enacting stricter

immigration controls. (139) One such measure was the temporary national

origin quota enacted in 1910, which had the clear purpose of

"confin[ing] immigration as much as possible to western and

northern European stock." (140)

The 1910 quota was made permanent by enactment of the 1924 National

Origins Act, which set forth a formula of determining the annual

allotment of visas contingent upon the number of American citizens who

could trace their ancestry to particular nations. (141) Importantly,

African Americans were excluded from the formula, meaning that they were

not counted for the purpose of granted visas to Africans looking to

immigrate to the United States. (142) The 1952 amendments to the quota

system, moreover, included specific restrictions on "colonial

immigration, which disproportionately affected persons of African

descent." (143) The end result of the quota system was that

migration from some countries was highly favored over others, and the

determination closely correlated with race. (144) Particularly, natives

from England, Germany, Ireland, and other Western European counties were

favored and migrants from Africa, Asia, and Eastern Europe were not.

(145) Such a systematic exclusion has been described by Professors

Gabriel Chin and Rose Cuison Villazor as "American apartheid."

(146) President Lyndon Johnson's speech upon the passage of the

1965 Immigration and Nationality Act heralded the end of "the harsh

injustice of the national origins quota system," a result that

would permit migrants to "come [to the U.S.] because of what they

are, and not because of the land from which they sprung." (147)

II. U.S. CONSTITUTIONAL & INTERNATIONAL LAW PROBLEMS WITH THE

BED QUOTA

The relationship between the government's treatment of

noncitizens and American constitutional protections is a topic that has

received considerable attention from the creation of federal immigration

law. Additionally, the relationship between international law and U.S.

immigration law, while complicated, is important from the vantage of

protecting migrants and refugees.

Constitutional immigration law is defined by Professor Hiroshi

Motomura as "the application of constitutional norms and principles

to test the validity of immigration rules." (148) There was scant

guidance as to this application because, while the Declaration of

Independence was considerably concerned about immigration, (149) a

decade later the nascent nation ratified the U.S. Constitution with only

one reference to immigration. (150)

Early constitutional immigration jurisprudence, as a result, was

dominated by determining the allocation of immigration powers amongst

the three branches of government. (151) In doing so, the U.S. Supreme

Court significantly limited judicial review over immigration matters by

giving virtually absolute authority, known as the plenary power

doctrine, (152) to the legislative and executive branches. (153) As

articulated in The Chinese Exclusion Case, Chae Chang Ping v. United

States: "The decision whether and how to exclude immigrants from

the United States represented a political question, not subject to

review by the judiciary." (154) Today, however, courts have shown

less deference to the government's power to detain immigrants by

upholding challenges to indefinite and prolonged detention.

In the international legal arena, the Universal Declaration of

Human Rights, adopted in 1948 by the United Nations General Assembly

after World War II, emphasizes protections against arbitrary detention

generally. Developments in international and U.S. immigration law with

regards to these protections for noncitizens have been divergent. On the

one hand, legal instruments prohibiting arbitrary detention have

extended the application of their provisions beyond refugees and asylum

seekers, to migrants generally. On the other hand, changes toward

criminalization in U.S. immigration law and policies over the past two

decades, including the expansion of the immigration detention system,

have created a significant schism between the legal landscape for

migrants under domestic U.S. and international human rights law.

This Part explores the immigration detention bed mandate through

the lens of both the Due Process Clause of the Fifth Amendment of the

U.S. Constitution and the international human rights legal frameworks

addressing arbitrary detention.

A. The Due Process Clause and Detention

The plenary power doctrine historically has been an obstacle for

non-citizens making constitutional claims concerning the manner by which

the government seeks to remove them. This is due to the groundwork laid

out by early constitutional immigration jurisprudence. Addressing the

general applicability of the Fifth Amendment of the U.S. Constitution,

the Supreme Court in Ekiu v. United States held that the due process

clause does not override the plenary power doctrine, i.e., that concerns

about due process do not require judicial oversight on matters of

immigration. (155)

Two years later came the first of two early foundational decisions

on due process and detention. In Fong Yue Ting v. United States, (156)

the Court reaffirmed the Ekiu articulation of the plenary power doctrine

and upheld the government's power to detain a noncitizen pending

removal. In doing so, the Court in Fong Yue Ting established that an

"order of deportation is not punishment for a crime," (157)

and that an individual incarcerated for allegedly violating immigration

law "has not ... been deprived of life, liberty[,] or property,

without due process of law." (158) Professor Daniel Kanstroom

describes the Fong Yue Ting ruling as "impl[ying] that the [federal

government's] deportation power is essentially limitless,"

(159) while noting that the Court modified this proposition of unbounded

government power in a subsequent opinion a decade later. (160) Even so,

the plenary power doctrine remained a virtual shield for challenging the

government's detention practices.

Three years after the Supreme Court's decision in Fong Yue

Ting, and "[o]n the very day it upheld racial segregation in Plessy

v. Ferguson," (161) the Court handed down a ruling that limited the

government's detention power over Chinese immigrants. (162) In Wong

Wing v. United States, (163) the Court struck down the provision of the

Chinese Exclusion Act of 1892 "which enhanced the ban against most

Chinese citizens and descendants from entering the United States by

imposing a sentence of hard labor for violating the prohibition."

(164) The Wong Wing decision also affirmed the right for the government

to detain non-citizens in conjunction with removal proceedings. (165) It

is for this latter proposition, namely that detention imposed for

administrative and not criminal purposes "is presumptively not

punishment," (166) that Wong Wing has had the greatest influence

over modern constitutional immigration jurisprudence on detention. (167)

This characterization of detention as administrative, not punitive, may

be an implicit reason for the tolerance of the immigration detention bed

quota.

The bed quota mandated by Congress since 2009 intersects in several

ways with the jurisprudence addressing detention and the Due Process

Clause of the Fifth Amendment. Having laid out the foundations of this

jurisprudence above, the next sub-Part will explore current trends in

the jurisprudence regarding immigration detention. In doing so, it will

highlight how these developments implicate the constitutionality of the

bed quota.

1. Current Trends in Immigration Detention Jurisprudence &

Policy

Over the past fifteen years, and especially in the past few years,

courts have ruled in favor of detainees with respect to indefinite and

prolonged mandatory detention. Professor David Cole characterizes

immigration detention as preventive rather than punitive, involving

depravation of "physical liberty without an adjudication of

criminal guilt." (168) Professor Cole draws from this depiction of

detention to contend that its "use is strictly circumscribed by due

process constraints," (169) a position bolstered by the waning

influence of the plenary power doctrine over constitutional immigration

jurisprudence, particularly in reference to detention. (170) So while

the plenary power doctrine historically limited judicial review of due

process claims over federal removal decisions, as summarized below, the

judicial treatment of the modern immigration detention legal scheme has

been more varied.

The modern statutory authority related to immigration detention is

organized, generally speaking, in three broad categories. Two are in

Section 236 of the Immigration and Nationality Act (INA), which

authorizes detention during removal. The first, Section 236(a), states

that "an alien may be arrested and detained pending a decision on

whether the alien is to be removed from the United States." (171)

The statute provides for conditional release or a right to a bond

hearing for non-citizens detained pursuant to this subsection. (172) The

second is Section 236(c), which is the mandatory detention provision for

noncitizens detained on criminal- or terrorism-related grounds. (173)

The last broad category of detention is authorized by Section 241(a) of

the INA, which confers authorization to detain non-citizens with final

orders of removal.

The first case bearing significant influence over the modern

American immigration detention system is Zadvydas v. Davis, (174) which

Professor Peter Spiro characterizes as "set[ting] the doctrinal

stage ... for the abandonment of plenary power." (175) The Supreme

Court in Zadvydas addressed INA Section 241(a)(6), which gives DHS

discretion to detain individuals with final orders of removal past the

mandated ninety day period. (176) The issue before the Court was whether

the statute provided for indefinite detention for individuals who the

government could not remove. As Professor Farrin Anello notes, "the

Court relied upon basic due process principles that have become crucial

to courts' assessment of whether there is any limit to mandatory

detention." (177) The Zadvydas ruling ultimately turned on a

statutory, rather than constitutional, analysis. (178) There, Justice

Breyer, writing for the majority, characterized section 241(a)(6) as

ambiguous as to whether DHS could detain individuals indefinitely, and

interpreting the statute as such would cause "a serious

constitutional problem." (179)

The following term, in Demore v. Kim, (180) the Supreme Court again

considered the bearing of the Due Process Clause on immigration

detention, analyzing INA section 236(c), the mandatory detention

provision for individuals in removal proceedings. (181) The Demore

decision brought back the primacy of the plenary power doctrine, as the

Court upheld the statute relying expressly on Wong Wing and "the

political branches' plenary power over deportation." (182)

Recent developments, however, pose considerable challenges to the

Supreme Court's decision in Demore. One of these challenges throws

into question a factor relied upon in the majority opinion, namely the

average length of time an individual is detained. The Demore Court

"did not expressly discuss the constitutional length of pre-removal

mandatory detention." (183) But it did rely on what the government

contended was the average length of time to hold that "Congress,

justifiably concerned that deportable criminal aliens who are not

detained continue to engage in crime and fail to appear for their

removal hearings in large numbers that may require that persons such as

respondent be detained for the brief period necessary for their removal

proceedings." (184) The opinion stated that "the very limited

time of detention" was too brief to trigger Fifth Amendment

protections. (185)

Recently, the Department of Justice (DOJ), (186) compelled by

Freedom of Information Act requests filed by immigrant rights'

organizations, admitted in a letter to the Supreme Court that they made

"several significant errors" (187) that led them to understate

the length of time individuals were held under INA Section 236(c):



Chief Justice William Rehnquist's majority opinion relied on data

from the government to conclude that resolving deportation

appeals 'takes an average of four months, with a median that is

slightly shorter.' ... The new estimate put the average detention

period at more than a year, or more than three times the four-month

estimate the Supreme Court relied on with the Demore ruling. (188)

The other set of developments from Demore involves significant

subsequent litigation on the mandatory detention statute. In one of the

cases, Jennings v. Rodriguez, (189) which the Supreme Court is

considering this term, (190) the Ninth Circuit held that detainees

incarcerated for six months pursuant to mandatory detention are entitled

to bond hearings. The Second and Third Circuits also have issued

holdings providing for bond hearings after six months. (191) Most

recently, the Ninth Circuit again addressed the mandatory detention

statute in Preap v. Johnson, (192) holding that the government can only

hold non-citizens under INA Section 236(c) if it takes them into custody

promptly upon their release from criminal custody. (193)

There have also been significant developments related to

noncitizens' Fifth Amendment rights in contexts other than

indefinite and mandatory detention. Specifically, for vulnerable

populations, there has been successful litigation for mentally disabled

detainees' right to a bond hearing. (194) Immigrant rights'

advocates have detailed and lodged formal complaints about the ways in

which detained non-citizens have limited or problematic access to

lawyers and other ways to prepare their cases, including guards creating

unreasonable delays for meetings between attorneys and detainees, and

detainees lacking access to phones and video teleconferencing (VTC).

(195) In response to a complaint filed specifically about the

Corrections Corporation of America's Stewart Detention Center, the

company installed a VTC system so that detainees, incarcerated 150 miles

from Atlanta, Georgia, have access to adequate legal representation.

(196)

2. Implications on the Bed Quota

The bed quota mandated by Congress through DHS's

appropriations bill since 2009 warrants scrutiny, especially in light of

recent jurisprudence placing limits on immigration detention.

Specifically, the judicial trend towards upholding detainees'

rights with respect to prolonged mandatory detention can be applied to

the fact that Congress requires the agency to maintain 34,000 detention

beds a day. This is especially true in light of DHS's stated policy

of prioritizing the detention and removal of non-citizens who pose

"threats to national security, public safety, and border

security." (197)

Moreover, as the agency demonstrated during the potential

government shut down in 2013, (198) non-citizens who otherwise could be

placed on supervised release are being detained. Congress expressly

warned the Executive that these releases were a violation of the

agency's appropriations terms when ICE officials were summoned by

the U.S. House of Representatives' Homeland Security Committee in

2013. (199) If the mandate is to fill beds regardless of whether the

non-citizens should be subjected to detention, then the provision is

squarely in violation of the procedural due process test set forth by

Mathews v. Eldridge. (200) Specifically, the individual interest is a

liberty interest, there does not appear to be any outweighing government

interest in filling 34,000 beds a day, and there are no costly

procedural safeguards at issue here. (201)

In line with the recent case law concerning immigration detention,

there is also a compelling statutory interpretation argument to clarify

the meaning of the immigration detention bed quota. Currently, the bed

quota seems to be incentivizing at best, and compelling at worst, the

executive branch to detain more non-citizens than necessary and should

be struck down under the Due Process Clause of the Fifth Amendment.

Congress should be made to clarify that the DHS appropriations language

of "shall maintain" does not mean the Executive must fill the

beds. Whether this interpretation from a fiscal policy perspective makes

sense is a question that will be explored in Part III.

B. International Law and Limits on the Use of Detention

Individual countries' immigration law and international human

rights law overlap significantly. Some assert that while nation states

have sovereign power to regulate migration across their borders,

"their immigration enforcement policies and practices--including

those relating to administrative detention--must comport with the

requirements of international human rights law." (202) Professor

Laura Adams points out that "[i]nternational human rights law and

domestic immigration law ... deal with many of the same fundamental

issues, such as freedom from detention and the right to due process of

law." (203) While intertwined, Professor Adams lays out how the

criminalization of U.S. immigration laws over the last decades,

including the practices of mandatory and indefinite detention, has

caused a "divergence" between the two bodies of law. (204)

Nowhere is this divergence more evident perhaps than in the scale

of the modern American immigration detention system. With the

immigration detention bed quota at the helm of the mass incarceration of

non-citizens in the U.S., this section examines the bed quota through

the lens of international law and principles concerning the detention of

migrants. Scholars have applied international human rights law to both

particular aspects and the general use of the immigration detention

system. (205) This section hones in on how the existence and application

of the bed quota specifically may violate such international norms. It

does so by discussing the prohibition of arbitrary detention, as well as

the standards set forth for the detention of vulnerable populations such

as asylum seekers and minors.

1. Protections Related to Arbitrary Detention and Vulnerable

Migrants

International human rights law advances two general principles

regarding the detention of migrants: detention should be a measure of

last resort, and particularly vulnerable migrants should not be

detained. Professor Denise Gilman has analyzed in great detail the

application of human rights norms to both the fact and extent of migrant

detention in the United States. (206) She notes that while the first

focus for international human rights bodies was the detention of

refugees and asylum seekers, (207) more recently such bodies have

extended the applicability of international human rights laws to the

detention of migrants generally. (208)

The right to not be detained arbitrarily is a core right related to

the right to personal liberty, the latter placed at the forefront in the

creation of modern international human rights law with the Universal

Declaration of Human Rights (UDHR). (209) In tandem with the liberty

interest enshrined in the UDHR is Article 9's specific prohibition

of "arbitrary arrest, detention or exile." (210)

Decades later, the United Nations adopted the International

Covenant on Civil and Political Rights (ICCPR). (211) Article 9(1) of

the ICCPR establishes: "Everyone has the right to liberty and

security of person. No one shall be subjected to arbitrary arrest or

detention. No one shall be deprived of his liberty except on such

grounds and in accordance with such procedure as are established by

law." (212) Elaborating on this ICCPR provision, the United Nations

Human Rights Committee has established that "[d]etention in the

course of proceedings for the control of immigration is not per se

arbitrary, but the detention must be justified as reasonable, necessary

and proportionate in the light of the circumstances and reassessed as it

extends in time." (213)

Detention as a measure of last resort for migration regulation is

another related overarching principle established by human rights law.

Also referred to by Professor Gilman as "a presumption against

detention for all migrants," (214) the principle of detention as a

last resort is articulated by international bodies such as the United

Nations Working Group on Arbitrary Detention and the UN Special

Rapporteur on the Human Rights of Migrants. This principle is

particularly prevalent in the human rights law instruments related to

the protection of vulnerable migrants. (215) Under U.S. law, asylum

seekers are amongst the categories of migrants and refugees subject to

mandatory detention. In 2014, ICE detained 44,270 asylum seekers,

representing a three-fold increase from 2010. (216)

The United Nations High Commissioner for Refugees (UNHCR) Detention

Guidelines, for example, begins Guideline 4 by stating: "Detention

must not be arbitrary." (217) The UNCHR Guidelines defines

arbitrary broadly, to mean "not only unlawfulness, but also

elements of inappropriateness, injustice and lack of

predictability." (218) It goes on to establish that

"[d]etention can only be resorted to when it is determined to be

necessary, reasonable in all the circumstances and proportionate to a

legitimate purpose." (219) There also are international human

rights legal norms in the form of Conventions that the United States did

not ratify. (220)

III. POLICY CONSIDERATIONS

The immigration detention bed quota is a significant yet

little-known impetus for the trend of mass incarceration in the

immigration context. As Representative Adam Smith noted, "[w]e

simply detain too many people, and the federal mandate [bed quota]

certainly drives a lot of that." (221) In the criminal context, the

United States government and society more broadly are meaningfully

engaging the question of how to curtail mass incarceration. (222) The

same scrutiny has not been applied to the mass detention of

non-citizens. (223) This Part offers public policy reasons to include

immigration detention, and the bed quota specifically, into the critical

examination of the American mass incarceration trend.

A line of argument against an arbitrarily high quota to detain

immigrants relies on the practical. A past DHS official has questioned

the quota along these lines:



Former ICE director Julie Myers Wood, who led the agency from

2006 to 2008 under President George W. Bush, said a congressional

mandate for ICE to maintain a minimum number of detainees was

a reasonable guideline at the outset of her tenure, when the Border

Patrol was making more than a million arrests per year. But today,

she said, 'it doesn't make sense.' (224)

Wood's statement highlights how the number of detention beds

that make up the bed quota does not correlate to needs assessment.

Another practical reason is fiscal, including more cost effective

ways to ensure that non-citizens in removal proceedings do not abscond.

There are also normative arguments against the bed quota, a significant

one being the importance of prosecutorial discretion in enforcing

immigration law. And while shifting institutional behavior is a

significant undertaking, there is compelling cause to do exactly that

for immigration detention policy-making. This Part will explore these

three arguments.

A. Prosecutorial Discretion

Prosecutorial discretion has been an important element of

immigration enforcement, and DHS during the Obama Administration has

emphasized its importance. Professor Shoba Sivaprasad Wadhia, in her

book Beyond Deportation, states: "A favorable exercise of

prosecutorial discretion in immigration law identifies the agency's

authority to refrain from asserting the full scope of the agency's

enforcement authority in a particular case." (225) This

articulation of discretion in immigration enforcement presents how the

Congressional bed quota may be in tension with the Executive's

authority to detain and removal noncitizens.

Prosecutorial discretion "has its historical underpinnings in

the executive branch's authority, both implicit and explicit, to

determine which individuals, who otherwise have no valid immigration

status, may remain in the United States." (226) It was a tool

emphasized by the General Counsel in 1976 of then-Immigration and

Naturalization Services (INS). (227) From this time to the present, the

discretion whether to arrest, detain, and remove a non-citizen from the

United States was presented as being grounded in both economic and

humanitarian concerns. (228)

With a significantly overburdened immigration enforcement and court

system today, prosecutorial discretion has taken on renewed importance.

Former ICE director John Morton issued guidance in 2011 on the exercise

of prosecutorial discretion as a way to encourage field offices to use

it in individual matters, and described its importance this way:

ICE must prioritize the use of its enforcement personnel, detention

space, and removal assets to ensure that the aliens it removes

represent, as much as reasonably possible, the agency's enforcement

priorities, namely the promotion of national security, border security,

public safety, and the integrity of the immigration system. (229)

this economic justification in the form of limited government

resources as one of the theories animating prosecutorial discretion.

(230) Harkening back to the articulation made over 40 years ago, Wadhia

also presents the humanitarian purpose of prosecutorial discretion,

namely not apprehending, detaining, or removing individuals who violated

immigration law but otherwise have redeeming equities or who may be

victims of crimes or disasters. (231)

As highlighted by the DACA and DAPA programs, the Executive has

exercised prosecutorial discretion for groups, in addition to using it

to make individual determinations. As discussed in the Introduction,

(232) with the United States v. Texas judicial impasse the role of

prosecutorial discretion for the former use is still an open question.

However, these legal challenges do not implicate the long-standing

principle that the Executive has discretion over whether to detain and

pursue removal on a case-by-case basis. It is in this latter realm on

which the Congressional bed quota appears to be encroaching.

B. Alternatives to Detention

Institutional confinement of non-citizens in removal proceedings is

not the only way to ensure that they do not abscond. There are

community-based Alternatives to Detention ("ATD"), which

include electronic monitoring such as wearing ankle bracelets, check-ins

with DHS, and curfews. (233) In 2004, ICE created the Intensive

Supervision Appearance Program (ISAP) as for low priority non-citizens

in removal proceedings, and have initiated other programs over the

years. (234) ATD has been recommended for vulnerable populations, such

as LGBT detainees. (235) The financial cost of the U.S. federal

government detaining non-citizens during their removal proceedings as

opposed to using an ATD is significant: Immigration detention costs

taxpayers about $160 per person, per day; ATD costs anywhere from 17

cents to about $18 per person, per day. (236)

The conservative research institute Center for Immigration Studies

has described the purpose of Congress' immigration bed quota as

"ensur[ing] that ICE is doing its job of facilitating suspected

removable aliens' appearance in immigration court, and if

applicable, compliance with removal orders." (237) ATD, however,

have been proven to be as effective as detention in achieving these

objectives. Non-citizens who participated in one ATD study demonstrated

a 91 percent success rate for appearing at all their court hearings,

with asylum seekers at a slightly higher rate of 93 percent. (238)

According to Human Rights First, in Fiscal Year 2014 participants of

ISAP had a 99 percent appearance rate for their final removal hearing.

(239)

The Obama Administration, for Fiscal Year 2016, requested from

Congress increased funding for its ATD programs. (240) In response, the

Chair of the House Commerce-Justice-Science Subcommittee, John

Culberson, raised the immigration detention bed quota, stating that an

"increased use of alternative methods does not mean Congress should

step back from its bed quota." (241) This statement is at odds with

an underlying purpose of ATD programs, which is to spend less money on

brick and mortar detention. Representative Culberson's statement is

in line with the argument that the bed quota is a "message to ICE

that its policy should favor detaining a large number of aliens

regardless of whether that detention makes sense from an economic or

security perspective." (242) This implication, however, does not

comport with what is in the best interest of society.

C. Shifting Institutional Behavior

As with the scaling back of mass incarceration in the criminal

justice context, ensuring that the detention of non-citizens in the

United States is in line with sound public policy will require

considerable changes, including contending with the role of

profit-driven stakeholders. Congress' inclusion of a daily quota of

34,000 beds in DHS's appropriations has fueled institutional

dependency on locking up non-citizens regardless of whether it is good

public policy.

Professor Cesar Cuauhtemoc Garcia Hernandez describes the

immigration detention bed quota as indicative of a "path-dependent

approach to imprisonment." (243) This approach encompasses

institutional behavior where future decisions are effected by previous

policy decisions, and so path-dependent choices are particularly

difficult to reverse. In the criminal justice context, Professor

Michelle Alexander emphasizes the role of private-sector investment and

prison profiteers in mass incarceration. (244) In the case of the

detention bed quota, "shifting away from imprisonment would require

that DHS empty thousands of prison beds that Congress currently requires

it to pay for and that it has made a habit of filling." (245)

A shift after the November 2016 election results is not promising.

One indicator is the surge in the stock prices of the two largest prison

corporations, CCA and GEO Group. (246) Security analysts attribute the

spike in share prices to the likelihood of policies that would

"further necessitate a sizable contract detention population."

(247) This anticipated new political climate may, however, alter the

need for imposing a quota on DHS, which could in the future help shift



policies away from the mass detention of non-citizens.

CONCLUSION

The immigration detention bed quota imposed by Congress since 2009

has been a largely invisible force behind a swollen system. As a law

enforcement quota through the Legislative branch on an executive agency

tasked with the enforcement at issue, it is unprecedented and unmatched.

The bed quota is becoming even more of an outlier with trends in

constitutional immigration law concerning the application of due process

limitations on detention, and developments moving away from private

prison corporations' influence in the U.S. criminal justice system.

International human rights law and public policy considerations

contribute to a case for re-thinking the immigration detention bed

quota.

ANITA SINHA, Assistant Professor of Law and Director, International

Human Rights Law Clinic, American University, Washington College of Law.

For helpful conversations and comments, I am grateful to Muneer Ahmad,

Susan Carle, Janie Chuang, Elizabeth Keyes, Annie Lai, Binny Miller, and

Jayesh Rathod. I would like to thank the participants in the

Crimmigration Lecture Series, especially Cesar Cuauhtemoc Garcia

Hernandez and Christopher Lasch. I also greatly benefitted from the

feedback I received from participants in the LatCrit Critical

Constitutionalism conference and the Clinical Law Review Workshop.

Thanks also to Juliana Perez Calle, Kamille Go, and Christina Moerhrle

for their fantastic research assistance. Lastly, I am grateful to the

phenomenal students of the Duke Journal of Constitutional Law &

Public Policy, in particular Priya Khangura and Trey O'Callaghan.

All errors are my own. I dedicate this Article to Savi the fighter and

his co-warriors Marcel and Rachid.

(1.) Jens Manuel Krogstad et al., 5 Facts About Illegal Immigration

in the U.S., PEW RESEARCH CENTER (Sept. 20, 2016),

http://www.pewresearch.org/fact-tank/2015/07/24/5-factsabout-illegal-immigration-in-the-u-s/.

(2.) Catherine Y. Kim, Immigration Separation of Powers and the

President's Power to Preempt, 90 NOTRE DAME L. REV. 691, 692

(2014).

(3.) See Carrie L. Rosenbaum, The Role of Equality Principles in

Preemption Analysis of Sub-Federal Immigration Laws: The California

TRUST Act, 18 CHAP. L. REV. 481 (2015) (describing the trend of state

laws seeking to regulate immigration as "sub-federal immigration

laws"), Hidetaka Hirota, The Moment of Transition: State Officials,

the Federal Government, and the Formation of American Immigration

Policy, 99 J. AM. HIST. 1092 (2013) (stating that prior to the late

1800s, before the creation of federal immigration law, immigration

regulation and enforcement was a matter of state law, but for a brief

period in in the late 18th century), Gerald L. Neuman, The Lost Century

of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1881

(1993) ("[T]he federal government briefly entered the alien

regulation business in 1798."); see also Ingrid V. Eagly, Local

Immigration Prosecution: A Study of Arizona Before SB 1070, 58 UCLA L.

REV. 1749 (2011) (describing how Arizona, despite formal prohibition on

state and local immigration regulation, prosecutes immigration-related

crimes, and arguing how through local prosecutors, the state is

nonetheless restructuring the federal system for punishing immigration

crime).

(4.) See Ian Gordon & Tasmeen Raja, 164 Anti-Immigration Laws

Passed Since 2010? A Mojo Analysis, MOTHER JONES (Mar. 2012) (showing

that the height of state anti-immigration laws was 2010-2011, when 164

such laws were passed), http://www.motherjones.com/politics/

2012/03/anti-immigration-law-database; see also Rick Su, The States of

Immigration, 54 WM. & MARY L. REV. 1339 (2013) (arguing that state

immigration laws are enacted less for their impact and more for shaping

federal immigration policy making); Michael J. Wishnie, Laboratories of

Bigotry? Devolution of the Immigration Power, Equal Protection, and

Federalism, 76 N.Y.U. L. REV. 493 (2001) (arguing that the devolution of

immigration authority to states by Congress contradicts the notion of

sovereignty and thus should not receive the deference granted

traditionally to federal immigration law).

(5.) Arizona v. United States, 567 U.S. _ (2012). For a summary of

the decision, see David Martin, Reading Arizona, 98 VA. L. REV. IN BRIEF

41 (2012).

(6.) Adam Liptak, Blocking Parts of Arizona Law, Justices Allow Its

Centerpiece, N.Y.

TIMES (June 25, 2012),

http://www.nytimes.com/2012/06/26/us/supreme-court-rejects-part-ofarizona-immigration-law.html?_r=0; see also Hardy Haberman, 'Your Papers

Please!', DALLAS VOICE (May 6, 2010, 2:39 PM),

http://www.dallasvoice.com/your-papers-please-1020702.html (linking

Arizona's law with the phrase "your papers please" used

in Nazi Germany).

(7.) ARIZ. REV. STAT. ANN. [section] 11-1051(B) (2012). In 2013,

the Arizona Civil Rights Advisory Board heard from undocumented

immigrants testifying on the negative impact the "show me your

papers" provision has had on the community. Valeria Fernandez,

Three Years After Passing Its "Papers, Please" Law, Arizona Is

Divided by Distrust and Fear, ALTERNET (Mar. 29, 2013),

http://www.alternet.org/civil-liberties/three-years-after-passing-its-papers-please-law-arizonadivided-distrust-and-fear. In 2014, the Obama

Administration agreed to drop their challenge of this provision. Howard

Fischer, Brewer, Feds Cut Deal on SB1070's "Papers

Please" Provision, ARIZ. CAPITOL TIMES (June 10, 2014, 7:56 AM),

http://azcapitoltimes.com/news/2014/06/10/

azsb1070-jan-brewer-deal-on-papers-please-provision/.

(8.) Catalina Restrepo, Annual Review of State-Level Immigration

Policy Still Trending Pro-Immigrant, AMERICAN IMMIGRATION COUNCIL

IMMIGRATION IMPACT (Aug. 11, 2015),

http://immigrationimpact.com/2015/08/11/state-immigration-laws-2015/.

For additional analysis of the Arizona v. United States decision, see,

e.g., Lucas Guttentag, Immigration Preemption and the Limits of State

Power: Reflections on Arizona v. United States, 9 STAN. J. C.R. &

C.L. 1 (2013); Adam B. Cox, Enforcement Redundancy and the Future of

Immigration Law, 2013 SUP. CT. REV. 31 (2012) (arguing that the Supreme

Court's decision made the case as much about separation of powers

than about federalism). For a perspective arguing that SB 1070 was a

constitutional state legislative act, see Calvin L. Lewis et al., Why

Arizona Senate Bill 1070 is Constitutional and Not Preempted by Federal

Law, 89 U. DET. MERCY L. REV. 283 (2012).

(9.) Jennifer G. Parser & David L. Woodard, President

Obama's Executive Action on Immigration Policy, THE NAT'L L.

REV. (Dec. 1, 2014), http://www.natlawreview.com/article/

president-obama-s-executive-action-immigration-policy. While the trend

of state anti-immigrant laws has reversed after the Supreme Court's

ruling in Arizona v. United States, those who supported both sides

claimed the Supreme Court's decision was a victory. See Kerry

Abrams, Plenary Power Preemption, 99 VA. L. REV. 601, 602 (2013).

(10.) The decision by the court to apply the injunction nation-wide

is being challenged in Complaint, Batalla Vidal v. Baran et. al., No.

16-cv-04756 (E.D.N.Y. Aug. 25, 2016). The Plaintiff in Batalla applied

and was granted a three-year period of deferred action and employment

authorization based on expanded DACA, Complaint at [paragraph] 32.

However, in May 2015 Defendants revoked his three-year employment

authorization after the issuance of the preliminary injunction in Texas

v. United States, and issued him a two-year employment authorization,

Complaint at [paragraph] 38. The Plaintiff asks the court to declare

that the preliminary injunction entered in Texas v. United States. does

not apply to New York residents based on arguments including the Texas

District Court's lack of jurisdiction over residents of New York,

see Complaint at [paragraph]43, [paragraph]44, and that the revocation

of Plaintiff's employment authorization document violated the

Administrative Procedure Act (APA), see Complaint at [paragraph] 58.

(11.) Kevin Johnson, Symposium: United States v. Texas--The Road to

Perpetual Immigration Gridlock, SCOTUSBLOG (Feb. 11, 2016, 9:52 AM),

http://www.scotusblog.com/2016/02/

symposium-united-states-v-texas-the-road-to-perpetual-immigration-gridlock/; Jennifer G. Parser, DAPA and DACA: What Happened to President

Obama's Executive Action?, THE NAT'L L. REV. (July 25, 2015),

http://www.natlawreview.com/article/dapa-and-daca-what-happened-topresident-obama-s-executive-action.

(12.) United States v. Texas, 787 F.3d 733 (5th Cir. 2015).

(13.) United States v. Texas, 579 U.S. ___ (2016). The Department

of Justice unsuccessfully petitioned the Fifth Circuit Court of Appeals

to lift the injunction.

(14.) For different viewpoints on the constitutionality of the

November 2014 executive actions, see, e.g., Peter Margulies, The

Boundaries of Executive Discretion: Deferred Action, Unlawful Presence,

and Immigration Law, 64 AM. U.L. REV. 1183 (2015) (arguing that DAPA

exceeds the President's authority); Josh Blackman, The

Constitutionality of DAPA Part II: Faithfully Executing the Law, 19 TEX.

REV. LAW & POL. 213 (2015) (analyzing DAPA through the Take Care

Clause and arguing that DAPA falls within the President's powers

and duty to execute the laws of Congress); Robert J. Delahunty &

John C. Yoo, Dream On: The Obama Administration's Nonenforcement of

Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L.

REV. 781 (2013) (addressing the original DACA program created by the

Executive in 2012 and arguing "that the Constitution's Take

Care Clause imposes on the President a duty to enforce all

constitutionally valid acts of Congress ... . [and so] there is simply

no general presidential nonenforcement power.").

(15.) Department of Homeland Security Appropriations Act, Pub. L.

No. 114-4, 129 Stat. 39, 43 (2015). See also Nick Miroff, Controversial

Quota Drives Immigration Detention Boom, WASHINGTON POST (Oct. 13, 2013)

("We know ICE can fill more than 34,000 beds, so why would they use

less?' said [John] Culberson [R-TX], a member of the House Homeland

Security appropriations subcommittee, which ties ICE funding to its

compliance with the mandate."),

https://www.washingtonpost.com/world/controversial-quota-drives-immigration-detentionboom/ 2013/10/13/09bb689e-214c-11e3-ad1a-1a919f2ed890_story.html.

(16.) Philip L. Torrey, Immigration Detention's Unfounded Bed

Mandate, in IMMIGRATION BRIEFINGS 5 (Apr. 2015).

(17.) Department of Homeland Security Appropriations Act, Pub. L.

No. 114-4, 129 Stat. 39, 43 (2015).

(18.) The prosecutorial discretion power in the immigration context

is distinct from that in the criminal context, the latter which has been

criticized as perpetuating systemic racial disparities. See Angela J.

Davis, In Search for Racial Justice: The Role of the Prosecutor, 16

N.Y.U. J. LEGIS. & PUB. POL'Y 821 (2013).

(19.) SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE ROLE OF

PROSECUTORIAL DISCRETION IN IMMIGRATION CASES 7 (2015) (showing that the

Executive has applied this discretion, historically and in recent times,

to both individual and groups).

(20.) Mark Joseph Stern, In a Tied Vote, the Supreme Court Blocks

Obama's Immigration Actions, SLATE (June 23, 2016, 11:11 AM),

http://www.slate.com/blogs/the_slatest/2016/06/23/

united_states_v_texas_ties_obama_immigration_executive_actions_blocked.html.

(21.) Shoba Sivaprasad Wadhia, Symposium: A Meditation on History,

Law, and Loss, SCOTUSBLOG (June 23, 2016, 2:08 PM),

http://www.scotusblog.com/2016/06/symposium-ameditation-on-history-law-and-loss/.

(22.) See infra Part I.C.

(23.) Banking on Detention: Local Lockup Quotas & the Immigrant

Dragnet, DETENTION WATCH NETWORK & CENTER FOR CONSTITUTIONAL RIGHTS

2 (2015) [hereinafter DWN/CCR Report] (quoting former ICE Director John

Sandweg in a September 2013 interview with Bloomberg).

(24.) Some have in fact attributed the expansion of the immigration

detention system to the Congressional bed quota. See, e.g., CESAR

CUAUHTEMOC GARCIA HERNANDEZ, CRIMMIGRATION LAW 242 (2015) ("Aside

from the many statutes that authorize or require detention ... the size

of today's civil immigration detention estate can be attributed to

a congressional directive known as the 'bed mandate.'").

(25.) Mark Noferi, Immigration Detention: Behind the Record

Numbers, CENTER FOR MIGRATION STUDIES (2014),

http://cmsny.org/immigration-detention-behind-the-recordnumbers/. The

average daily population increased almost five-fold between 1995 and

2011. See Doris Meissner et. al, Immigration Enforcement in the United

States: The Rise of a Formidable Machinery, MIGRATION POLICY INSTITUTE

11 (the increase being from 7,475 to 33,330 detainees in ICE custody per

day). According to the most recent DHS annual report available, in 2013

ICE detained 440,557 individuals. See John F. Simanski, Immigration

Enforcement Actions: 2013, U.S. DEP'T OF HOMELAND SEC., OFFICE OF

IMMIGRATION STATISTICS 6 (Sept. 2014),

https://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf. The 2013 figure was about 8% below the record-breaking number

of detentions in Fiscal Year 2012, when 477,000 individuals were in ICE

custody. See DWN/CCR Report, supra note 23 at 1. The number of

noncitizens detained in 2012 was more than double the number of

individuals detained by ICE in 2001, see Stakeholder Submission to the

United Nations Universal Periodic Review 22nd Session of the Working

Group on the UPR Human Rights Council, THE ADVOCATES FOR HUMAN RIGHTS

& DETENTION WATCH NETWORK 9 (Apr.-May 2015),

http://www.theadvocatesfor

humanrights.org/uploads/us_hrc_-_migrant_detention_-_sept_2014_2.pdf.

(26.) Meissner et al., supra note 25, at 9 (emphasis in original).

(27.) DWN/CCR Report, supra note 23, at 1. Sixty-two percent of

immigration detention beds are operated by private prison corporations.

Moreover, many government-owned immigration detention facilities use

"privately contracted detention-related services such as food,

security, and transportation." Id.

(28.) See infra Part II.B.

(29.) See infra text accompanying notes 83-85.

(30.) Sarah Chacko, Administration Warned to Keep Detention Beds

Full, CQ ROLL CALL, 2015 WL 1964623 (2015).

(31.) Stephen H. Legomsky, The New Path of Immigration Law:

Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE

L. REV. 469 (2007).

(32.) See Subhash Kateel & Aarti Shahani, Families for Freedom

Against Deportation and Delegalization, in KEEPING OUT THE OTHER: A

CRITICAL INTRODUCTION TO IMMIGRATION ENFORCEMENT TODAY 263 (David C.

Brotherton & Philip Kretsedemas, ed., 2008) ("On the books,

detention and deportation are civil--rather than criminal--processes run

by the executive branch, not punishments given by the judiciary. For

most detainees, it means that you are held like a prisoner without the

niceties of the criminal justice system.").

(33.) Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40

QUEENS L.J. 55 (2014).

(34.) Raul A. Reyes, America's Shameful "Prison

Camps", CNN (July 23, 2015),

http://www.cnn.com/2015/07/23/opinions/reyes-immigration-detention/.

(35.) See Abira Ashfaq, Invisible Removal, Endless Detention,

Limited Relief: A Taste of Immigration Court Representation for Detained

Noncitizens, in KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO

IMMIGRATION ENFORCEMENT TODAY 199 (David C. Brotherton & Philip

Kretsedemas, ed., 2008) (describing immigrant detainees held in county

jails: "You obey the rules of the jail. The jail guards treat you

like any other prisoner. The administration gives you a number, a bed

and a commode, and library hours just like any other prisoner. In fact,

you are worse off because you cannot participate in the educational

programs county inmates can participate in."); see also Sarah

Davila-Ruhaak, ICE's New Policy on Segregation and the Continuing

Use of Solitary Confinement Within the Context of International Human

Rights, 47 J.

MARSHALL L. REV. 1433, 1439 (2014) ("The reality of

immigration detention is, however, critically intertwined with the

criminal penal system. Immigrant detainees are held in the same

facilities as criminally convicted persons and subject to similar, if

not the same, treatment.").

(36.) Anita Sinha, Slavery by Another Name, "Voluntary"

Detainee Labor and the Thirteenth Amendment, 11 STAN.J C.R.&C.L. 1,

8-9 (2015).

(37.) David Alan Sklansky, Crime, Immigration, and Ad Hoc

Instrumentalism, 15 NEW CRIM. L. REV. 157, 182 (2012).

(38.) See Noferi, supra note 25.

(39.) See GARCIA HERNANDEZ, supra note 24.

(40.) Robert M. Morgenthau, The US Keeps 34,000 Immigrants in

Detention Each Day Simply to Meet a Quota, THE NATION (Aug. 13, 2014),

http://www.thenation.com/article/us-keeps-34000-immigrants-detention-each-day-simply-meet-quota/.

(41.) Id.

(42.) Detention Quotas, DETENTION WATCH NETWORK,

https://www.detentionwatch network.org/issues/detention-quotas.

(43.) In some sources, the bed mandate is stated to appear first in

2007. See, e.g., Esther Yu Hsi Lee, Homeland Security Head Insists

'Bed Mandate' is Not a Quota to Fill Detention Centers,

THINKPROGRESS (Mar. 12, 2014),

http://thinkprogress.org/immigration/2014/03/12/3391911/jehjohnson-bed-mandate-quota/. The FY 2007 DHS budget did add new appropriations to

increase the agency's capacity to detain individuals, but it does

not precisely relate to the quota that first appears in the FY 2009 DHS

budget. See Torrey, supra note 16, at 4 ("The FY 2007 DHS budget

increased the agency's custody operations budget by $400 million,

which was enough money for 6,700 more beds and a total detention

capacity of 27,5000 beds.").

(44.) Department of Homeland Security Appropriations Act of 2010,

Pub. L. No. 111-83, 123 Stat. 2149 (2009).

(45.) While Congress in 2011 failed to pass a DHS appropriations

bill, it increased the immigration bed quota to 34,000 by passing the

Continuing Appropriations Act of 2011. See Torrey supra note 16, at 6.

(46.) Department of Homeland Security Appropriations Act, Pub. L.

No. 114-215, 129 Stat. 39, 43 (2015).

(47.) Torrey, supra note 16, at 3.

(48.) Id.

(49.) Id.

(50.) Id. The Bush Administration consistently pushed for increased

immigration detention bed capacity, ultimately increasing the total DHS

detention capacity to 33,400.

(51.) It should be noted that Senator Byrd had a significantly

racialized political and legislative past, including with the Klu Klux

Klan and voting against the 1965 Civil Rights Act. See Eric Pianin, A

Senator's Shame, WASH. POST (June 19, 2005), http://www.washington

post.com/wpdyn/content/article/2005/06/18/AR2005061801105.html.

(52.) Senator Byrd was seriously ill, which is why Senator Durbin

spoke on his behalf, see Torrey, supra note 16, at 5.

(53.) Christina Elhaddad, Note, Bed Time for the Bed Mandate: A

Call for Administrative Immigration Reform, 67 ADMIN. L. REV. ACCORD 32,

34 (2014), (citing 155 CONG. REC. S7164 (July 7, 2009) (statement of

Sen. Richard Durbin)); William Selway & Margaret Newkirk, BLOOMBERG

(Sept. 24, 2013, 12:01 AM),

http://www.bloomberg.com/news/articles/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants (quoting a former aide to Senator

Byrd who stated that "[t]he senator wanted to ensure that cost

increases wouldn't lead ICE to fund fewer beds").

(54.) Torrey, supra note 16, at 4.

(55.) See Ginger Thompson & David M. Herszenhorn, Obama Set for

First Step on Immigration Reform, N.Y. TIMES (June 24, 2009),

http://www.nytimes.com/2009/06/25/ us/politics/25immig.html ("The

unemployment rate is expected to stay high, making Democrats who are

wavering on immigration reform leery of supporting it.").

(56.) Bethany Carson & Eleana Diaz, Payoff: How Congress

Ensures Private Prison Profit With an Immigrant Detention Quota,

GRASSROOTS LEADERSHIP (Apr. 2015), http://grassroots

leadership.org/reports/payoff-how-congress-ensures-private-prison-profit-immigrant-detentionquota.

(57.) See Selway & Newkirk, supra note 53.

(58.) Id.

(59.) See, e.g., Grassroots Leadership supra note 56; DWN/CCR

Report, supra note 23.

(60.) Letter to Congress Members, Immigration detention bed mandate

in FY 2015 DHS Appropriations (Jan. 24, 2014),

http://immigrantjustice.org/sites/immigrantjustice.org/files/

FINAL%20NGO%20sign-on%20bed%20mandate%20-%20Congress%201.24.14_1.pdf.

(61.) Letter to President Obama from Members of Congress (Sept. 25,

2013), http://immigrantjustice.org/sites/immigrantjustice.org/files/2013_09_25%20Deutch%20Foster% 20Bed%20Mandate%20Letter%20to%20Obama.pdf.

(62.) Torrey, supra note 16, at 6.

(63.) Id.

(64.) Foster, Deutch Efforts to end Immigrant Detention Bed

Mandate, TIMES WEEKLY (Dec. 16, 2014, 9:21 PM),

http://thetimesweekly.com/news/2014/dec/16/foster-deutch-efforts-endimmigrant-detention-bed-/.

(65.) See Selway & Newkirk, supra note 53.

(66.) Katharina Obser, The Outdated Immigrant Detention System, THE

HILL (Oct. 18, 2013, 6:00 PM),

http://thehill.com/blogs/congress-blog/judicial/329325-the-outdated-immigrantdetention-system.

(67.) Andy Sullivan, Insight: Congress Keeps Detention Quota

Despite Immigration Debate, REUTERS (July 8, 2013, 5:32 PM),

http://www.reuters.com/article/2013/07/08/us-usa-immigrationdetention-insight-idUSBRE96711920130708.

(68.) President Obama's FY 2013 and 2014 proposed budgets

requested a reduction in detention capacity. See Torrey, supra note 16,

at 6-7.

(69.) Bessie Munoz, Immigrants for Sale: Corporate America Puts a

Price Tag on Sexual Abuse, 17 SCHOLAR 553, 563 (2015).

(70.) Cesar Cuauhtemoc Garcia Hernandez, Naturalizing Immigration

Imprisonment, 103 CAL. L. REV. 1449, 1500 (2015) (stating that even

though "ICE conducted public safety and flight risk assessments and

released only those presenting a low probability of both risks,"

Republican congress members publicly accused the agency for releasing

criminals and endangering Americans).

(71.) See Selway & Newkirk, supra note 53.

(72.) Id. ("In 2009, the year Congress set the bed quota, as

many as 25 lobbyists represented [CCA] on budget and appropriations

issues, according to filings with Congress.").

(73.) Budget Hearing on Immigration and Customs Enforcement Before

the Subcomm. on Homeland Security of the H. Comm. on Appropriations,

114th Cong. (Apr. 15, 2015),

http://appropriations.house.gov/calendar/eventsingle.aspx?EventID=394119.

(74.) See Cody Mason, Dollars and Detainees: The Growth of

For-Profit Detention, THE SENTENCING PROJECT 1 (July 19, 2012),

http://www.sentencingproject.org/publications/dollars

and-detainees-the-growth-of-for-profit-detention/ ("The War on

Drugs and harsh sentencing laws led to explosive growth in state and

federal prison populations in the 1980s. The massive rise in prisoners

overwhelmed government budgets and resources, and created opportunities

for private prison companies to flourish. In 2010, one in every 13

prisoners in the U.S. was held by for-profit companies.").

(75.) Unlocking Human Dignity: A Plan to Transform the U.S.

Immigrant Detention System, U.S. CONFERENCE OF CATHOLIC BISHOPS &

CENTER FOR MIGRATION STUDIES 25-26 (2015),

http://www.usccb.org/about/migration-and-refugee-services/upload/unlocking-humandignity. pdf.

(76.) Philip L. Torrey, Rethinking Immigration's Mandatory

Detention Regime: Politics, Profit, and the Meaning of

"Custody," 48 U. MICH. J.L. REFORM 879, 899 (2015). Recently,

CCA announced a company name change to "CoreCivic,"

"Corrections Corporation of America Rebrands as CoreCivic."

See Bethany Davis, Corrections Corporation of America Rebrands as

CoreCivic, INSIDECCA, (Oct. 28, 2016, 11:00 AM),

http://www.cca.com/insidecca/

correctionscorporation-of-America-rebrands-as-corecivic. However, this

Article will refer to the company as CCA.

(77.) Unlocking Human Dignity: A Plan to Transform the U.S.

Immigration Detention System, CENTER FOR MIGRATION STUDIES & U.S.

CONFERENCE OF CATHOLIC BISHOPS 25 (2015),

http://www.usccb.org/about/migration-and-refugee-services/upload/unlocking-humandignity. pdf.

(78.) See Cheryl Little, The War on Immigrants: Stories from the

Front Lines, AMERICAS QUARTERLY (Summer 2008),

http://www.americasquarterly.org/node/305 ("The U.S.

Government's War on Terror has transgressed into a War on

Immigrants.").

(79.) See Carson & Diaz, supra note 56.

(80.) Id.

(81.) See Sullivan, supra note 67.

(82.) Id.

(83.) Bethany Carson & Eleana Diaz, Payoff: How Congress

Ensures Private Prison Profit with an Immigrant Detention Quota 4 (Apr.

2015), http://grassrootsleadership.org/sites/default/

files/reports/quota_report_final_digital.pdf.

(84.) See Morgenthau, supra note 40.

(85.) Id.; see also Hernandez, supra note 70, at 1509 (pointing out

that local governments also profit from immigration detention, noting

that "immigration prisons are particularly attractive to local

political leaders because the federal government pays almost all of the

costs of detention.").

(86.) William Selway & Margaret Newkirk, Congress's

Illegal-Immigration Detention Quota Costs $2 Billion a Year, BLOOMBERG

(Sept. 26, 2013, 8:16 PM), http://www.bloomberg.com/new

s/articles/2013-09-26/congresss-illegal-immigration-detention-quota-costs-2-billion-a-year.

(87.) See Hernandez, supra note 70, at 1508 ("Collectively,

from 2005 to early 2013, private prison companies spent approximately

$45 million lobbying state and federal politicians, including key

lawmakers who have advanced proposals that world have expanded civil and

criminal immigration imprisonment.").

(88.) See Selway & Newkirk, supra note 53.

(89.) Id.

(90.) Torrey, supra note 76, at 904.

(91.) Id.

(92.) Roque Planas, Bed Quota Fuels 'Inhumane' and

'Unnecessary' Immigrant Detention: Report, THE HUFFINGTON POST

(Apr. 15, 2015, 6:04 PM), http://www.huffingtonpost.com/

2015/04/15/private-prison-immigrant-detention_n_7072902.html.

(93.) Ghita Schwartz & Silky Shah, Ending Local Detention

Quotas, Secret Perks for Corporations in Federal Contracts and Profiting

Off Jailing Immigrant Families, THE HILL (June 17, 2016, 2:12 PM),

http://thehill.com/blogs/congress-blog/judicial/283785-ending-local-detentionquotas- secret-perks-for-corporations-in.

(94.) See DWN/CCR Report, supra note 23, at 3 (stating that

guaranteed minimums "can be understood in the context of the

private prison industry's past instability and its successful

pursuit of guaranteed profits.").

(95.) Criminal: How Lockup Quotas and "Low-Crime Taxes"

Guarantee Profits for Private Prison Corporations, in IN THE PUBLIC

INTEREST 3 (Sept. 2013), http://www.njjn.org/uploads

/digital-library/Criminal-Lockup-Quota,-In-the-Public-Interest,-9.13.pdf.

(96.) Id.

(97.) Id. at 6.

(98.) Id. at 3. Other negative implications discussed in the report

are dangerous prison conditions, and the enactment of policies

inconsistent with the public interest with respect to criminal justice.

(99.) Donald Cohen, Lockup Quotas, Low-Crime Taxes, and the

For-Profit Prison Industry, HUFFINGTON POST (Nov. 26, 2013),

http://www.huffingtonpost.com/donald-cohen/lockupquotas-lowcrime-ta_b_3956336.html.

(100.) DWN/CCR Report, supra note 23, at 6.

(101.) Id. at 3.

(102.) Id. at 3 (stating that detention-related services can

include contracting with companies to provide security, transportation,

and food).

(103.) Id. at 5.

(104.) Id. at 4. The report goes on to provide evidence showing

that "[b]ecause GEO Group has been the most successful company in

getting guaranteed minimums incorporated into their contracts, their

facilities are often prioritized in order to fill local quotas."

Id. at 6.

(105.) See id. at 9 ("For example, the Houston Processing

Center's guaranteed minimum increased from 375 to 750 between 2003

and 2008, and at Port Isabel Detention Center, the guaranteed minimum

increased from 500 to 800 between 2008 and 2014. Krome Detention

Center's guaranteed minimum also saw an increase from 250 to 450

between 2008 and 2014. For each, there is no publicly available

information as to why such dramatic increases were necessary.").

(106.) Id. at 6. In another email, one of the same ICE Enforcement

and Removal Operations headquarter officials, then Acting Assistant

Director for Field Operations, Phillip T. Miller, emphasized to the

field offices that they should "[e]nsure that all mandatory minimum

detention bed guarantees are being met and that any net cost benefits of

tiered pricing or low cost beds are being realized." Id. The report

notes that while ICE's spreadsheet listed 11 field offices with

occupancy guarantees, the FOIA response showed that the New Orleans

Field Office also is subject to a contract with a guarantee minimum, for

the Jena/LaSalle Detention Facility. Id. (footnotes omitted).

(107.) H.R. 2808, 114th Cong. [section] 2 (2015).

(108.) Id.

(109.) Id.

(110.) Press Release, U.S. Reps. Ted Deutch, Bill Foster, and Adam

Smith Introduce Bill Banning Local Immigrant Detention Quotas (June 18,

2015), http://teddeutch.house.gov/ne

ws/documentsingle.aspx?DocumentID=398445.

(111.) Schwartz & Shah, supra note 93. The contracts between

CCA and ICE for the "family detention" facilities that were

built to incarcerate the Central American women and children seeking

refugee due to the growing gang violence in the region include an

arrangement where "CCA is paid for 100 percent capacity even if the

facility is, say, half full, as it has been in recent months." See

Chico Harlan, Inside the Administration's $1 Billion Deal to Detain

Central American Asylum Seekers, WASH. POST (Aug. 14, 2016),

https://www.washingtonpost.com/

business/economy/inside-the-administrations-1-billion-deal-to-detain-central-american-asylumseekers/

2016/08/14/e47f1960-5819-11e6-9aee-8075993d73a2_story.html.

(112.) Torrey, supra note 16, at 7.

(113.) Phasing Out Our Use of Private Prisons, U.S. DEP'T OF

JUSTICE (Aug. 18, 2016),

https://www.justice.gov/opa/blog/phasing-out-our-use-private-prisons

[hereinafter DOJ Announcement].

(114.) Id.

(115.) Mike Lillis, Sanders, Liberals press Obama to expand closure

of private prisons, THE HILL (Aug. 18, 2016),

http://thehill.com/homenews/administration/291925-sanders-liberals-pressobama-to-expand-closure-of-private-prisons. Senator Patrick Leahy

(D-Vt.), senior senator on the Senate Judiciary Committee, stated that

the DOJ's mandate is not enough and called for these changes to be

adopted by the DHS. Id.; see also Comment of Senator Patrick Leahy On

the Announcement by the Department of Justice Regarding Private Prisons

(Aug. 18, 2016), https://www.leahy.senate.gov/press/comment-of-senator-patrick-leahy-on-the-announcementby-the-department-of-justice-regarding-private-prisons.

(116.) Letter to Secretary Jeh Johnson (Aug. 22, 2016),

https://grijalva.house.gov/uploads /2016_8_22DHS_Private_prisons.pdf

[hereinafter Letter to Johnson]; see also Chico Harlan, Sanders,

Arizona's Grijalva Call for Ending Use of Privately Run Detention

Centers, WASH. POST (Aug. 22, 2016),

https://www.washingtonpost.com/business/economy/sanders-arizonas-grijalvacall-for-ending-use-of-privately-run-detention-centers/

2016/08/22/f692f04a-6890-11e6-99bff0cf3a6449a6_story.html.

(117.) Letter to Johnson, supra note 116.

(118.) Statement by Secretary Jeh C. Johnson on Establishing a

Review of Privatized Immigration Detention (Aug. 29, 2016),

https://www.dhs.gov/news/2016/08/29/statementsecretary-jeh-c-johnson-establishing-review-privatized-immigration.

(119.) Reuters, Closing Private Detention Centers for Migrants

Could Raise More Problems, FORTUNE (Sept. 9. 2016),

http://fortune.com/2016/09/09/closing-private-detention-centers-illegalimmigrants/.

(120.) Reynaldo Leanos, Jr., DHS Will Review its Relationship with

Private Prison Companies, But There Are Many Questions About What Comes

Next, PUB. RADIO INT'L (Sept. 1, 2016),

http://www.pri.org/stories/2016-09-01/dhs-will-review-its-relationship-private-prison-companiesthere-are-many.

(121.) Id.

(122.) Charles E. Lupia, Statistical Justice, 69 DEC. N.Y. ST. B.J.

16 (1997).

(123.) See id. ("[T]he results of this approach are at best

temporary and unsatisfactory ... [f]or they do not seek out the roots of

crime.).

(124.) Nathaniel Bronstein, Police Management and Quotas:

Governance in the Compstat Era, 48 COLUM. J.L. & SOC. PROBS. 543,

556 (2015).

(125.) Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y.

2013) (noting that the stopand-frisk practices in New York City were

banned, and when Bill de Blasio became mayor, he withdrew the

city's appeal of that decision). See generally Rima Vesely-Flad,

New York City Under Siege: The Moral Politics of Policing Practices,

1993-2013, 49 WAKE FOREST L. REV. 889, 900 (2014).

(126.) Joel Rose, Despite Laws and Lawsuits, Quota-Based Policing

Lingers, NAT'L PUB. RADIO (Apr. 6, 2015),

http://www.npr.org/2015/04/04/395061810/despite-laws-and-lawsuitsquota-based-policing-lingers.

(127.) Id. (including a statement from a former officer who

described the quota as "20 and 1," referring to twenty

citations and one arrest per officer, per month).

(128.) Id. As a stark example of such bad performance, two former

Atlanta police officers involved in a lawsuit over a public strip search

claimed that "pulling down the pants of men in hopes of finding

drugs was necessary to meet their quota of daily arrests." Id.

Another undesirable result of quotas is false arrests, and subsequent

"dishonesty in the form of cover charges and added falsifications

to increase the likelihood of conviction...." David N. Dorfman,

Proving the Lie: Litigating Police Credibility, 26 AM. J. CRIM. L. 455

(1999).

(129.) Rose, supra note 126.

(130.) Lupia, supra note 122 ("[H]istorical racism and

continued resultant poverty have caused members of certain ethnic groups

to have frequent brushes with the law ... [and the result of] increased

convictions ... has been the statistic of large number of poorer persons

in prison.").

(131.) Former NYC Mayor Rudolph Giuliani's "broken

windows" approach to law enforcement, which prioritized low-level

crimes, and former NYC Mayor Michael Bloomberg's "quality of

life crimes" with the same focus, were the foundation of the

NYPD's stop-and-frisk practice. See Ari Rosmarin, The Phantom

Defense: The Unavailability of the Entrapment Defense In New York City

"Plain View" Marijuana Arrests, 21 J.L. & POL'Y 189

(2012).

(132.) Vesely-Flad, supra note 125.

(133.) Darius Charney et. al., Remark: Suspect Fits Description:

Responses to Racial Profiling in New York City, 14 CUNY L. REV. 57

(2010). In 2009 alone, [the NYPD's stop-and-frisk policy] resulted

in over 575,000 stops of individuals. Of those who were stopped, 88%

were totally innocent of any crime or offense. Fifty-four percent were

black, 31% were Latino, and 9% were white." Id.

(134.) Selim Aigar & Josh Saul, NYPD Set Arrest Quotas for

Minority Cops in Their Own Communities: Suit, N.Y. POST (Sept. 1, 2015),

http://nypost.com/2015/09/01/cop-suing-overminority-arrest-quotas-says-he-faced-retaliation/.

(135.) See, e.g., Aaron Haas, Profiling and Immigration, 18 WASH.

& LEE J. CIVIL RTS. & SOC. JUST. 3, 12 (2011) ("The twin

trends of criminalizing and localizing immigration enforcement have

created a situation in which local police are encouraged to target

Hispanics for detention and arrests. This kind of profiling has already

been seen in the border areas, but, as the underlying trend goes

national, it can be expected that profiling will also increasingly be

seen throughout the country."); Kevin R. Johnson, Racial Profiling

After September 11: The Department of Justice's 2003 Guidelines, 25

IMMIGR. & NAT'LITY L. REV. 85, 86 (2004) ("The treatment

of Arabs and Muslims after September 11 offers a lesson from current

events how easily race, national origin, nationality, and religion can

be abused by law enforcement."); Sameer Ashar, Immigration

Enforcement and Subordination: The Consequences of Racial Profiling

After September 11, 12 IMMIGR. & NAT'LITY L. REV. 545, 552

(describing a client who "was amongst the 1,200 Arab and South

Asian Muslim men arrested and detained in the months following September

11").

(136.) The Black Alliance for Just Immigration and The New York

University School of Law Immigrant Rights Clinic, The State of Black

Immigrants (Sept. 2016), http://www.stateofblack immigrants.com/.

(137.) Id.

(138.) Esther Yu Hsi Lee, The Mass Deportation of Black Immigrants

That You Haven't Heard About, THINKPROGRESS (July 26, 2016),

https://thinkprogress.org/the-mass-deportation-ofblack-immigrants-that-you-havent-heard-about-4c291b0c5205#.fake96c80 (noting additionally that

in Fiscal Year 2014, the ICE agency deported 1,203 African immigrants).

For more generally on the plight of black immigrants in the U.S., see

Andre Chung, Black & Undocumented: Caribbean Immigrant's Long

Fight for Citizenship, NBC NEWS (Apr. 23, 2016),

http://www.nbcnews.com/news/nbcblk/black-undocumented-caribbean-immigrant-s-long-fightcitizenship-n557441.

(139.) Richard A. Boswell, Racism & U.S. Immigration Law:

Prospects for Reform After "9/11?", 7 J. GENDER RACE &

JUST. 315, 324 (2003).

(140.) Id. at 324-25 (citing U.S. Comm'n on Civil Rights, The

Tarnished Golden Door: Civil Rights Issues in Immigration 8 (1980)).

(141.) Gabriel Chin, The Civil Rights Revolution Comes to

Immigration Law: A New Look at the Immigration and Nationality Act of

1965, 75 N.C. L. REV. 273, 279 (1996).

(142.) Id. at 280 (citing Immigration Act of 1924, ch. 190

[section] 11(d), 43 Stat. 153, 159 (amended 1952)) (establishing that

"the term 'inhabitants in continental United States in

1920' does not include ... the descendants of slave

immigrants").

(143.) Id. For an in-depth discussion of African immigration to the

U.S., see generally Bill Ong Hing, African Migration to the United

States: Assigned to the Back of the Bus, in PERSPECTIVES ON THE

IMMIGRATION AND NATIONALITY ACT OF 1965 60 (Gabriel J. Chin & Rose

Cuison Villazor, eds., 2015).

(144.) See Kevin R. Johnson, Race, the Immigration Laws, and

Domestic Race Relations: A "Magic Mirror" Into the Heart of

Darkness, 73 IND. L.J. 1111, 1115-16 (1998) (positing that the "use

of quotas to exclude racialized peoples ... evolved into more subtle

forms of exclusion with the transformation of racial sensibilities in

modern times."). For a discussion on the link between eugenics and

the immigration quota system, see Rachel Silber, Note, Eugenics, Family,

and Immigration Law in the 1920s, 11 GEO. IMMIG. L.J. 859 (1997).

(145.) GABRIEL J. CHIN & ROSE CUISON VILLAZOR, PERSPECTIVES ON

THE IMMIGRATION AND NATIONALITY ACT OF 1965 3 (Gabriel J. Chin &

Rose Cuison Villazor, eds., 2015). See also Jan C. Ting, "Other

than a Chinaman:" How U.S. Immigration Law Resulted From and Still

Reflects a Policy of Excluding and Restricting Asian Immigration, 4

TEMP. POL. & CIV. RTS. L. REV. 301 (1995).

(146.) CHIN & VILLAZOR, supra note 145, at 2. For a

comprehensive account of U.S. immigration controls from the 1920s to

1965, see MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE

MAKING OF MODERN AMERICA (2003).

(147.) Brian Soucek, The Last Preference: Refugees and the 1965

Immigration Act, in CHIN & VILLAZOR, supra note 145, at 171. While

the end of the national origins quota system lifted a significant

barrier to migration to the United States, it detrimentally impacted

Mexican migrants.

See Jeanette Money & Kristina Victor, The 1965 Immigration Act:

The Demographic and Political Transformation of Mexicans and Mexican

Americans in U.S. Border Communities, in CHIN & VILLAZOR, supra note

145, at 315 ("By placing a cap on Western Hemisphere migration for

the first time, it limited legal migration that had previously been

virtually unlimited, at least in principle.").

(148.) A term coined by Professor Hiroshi Motomura,

"'constitutional immigration law' means the application

of constitutional norms and principles to test the validity of

immigration rules in subconstitutional form, including statutes,

regulations, and administrative guidelines." Hiroshi Motomura,

Immigration Law After a Century of Plenary Power: Phantom Constitutional

Norms and Statutory Interpretation, 100 YALE L.J. 545, 548 (1990).

(149.) The topic was explicitly addressed in the Declaration of

Independence, as "one of the Founders' grievances against King

George was that he was limiting immigration, by trying 'to prevent

the population of these States; for that purpose obstructing the Laws

for Naturalization of Foreigners; refusing to pass others to encourage

their migrations hither[.]'" See Margaret Stock, Immigration

and the Separation of Powers, WASH. TIMES (July 7, 2015),

http://www.washington

times.com/news/2015/jul/7/celebrate-liberty-month-immigration-and-the-separa/?page=all.

(150.) See U.S. CONST. art. I, [section] 9, cl. 1 ("The

Migration or Importation of such Persons as any of the States now

existing shall think proper to admit, shall not be prohibited by the

Congress prior to the Year one thousand eight hundred and

eight...."). Professors Legomsky and Rodriguez also explore

arguments as to whether the government's power to regulate

immigration can be derived from the Commerce Clause, the Naturalization

Clause, the War Clause, or through implied Constitutional powers

(including as derived from Foreign Relations power). See STEPHEN H.

LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND

POLICY 99-104 (6th ed. 2015).

(151.) See Stock, supra note 149 (arguing that the rationale for

establishing plenary power relates to the U.S. Constitution's

virtual silence on the subject of immigration); see also Adam B. Cox

& Cristina M. Rodriguez, The President and Immigration Law, 119 YALE

L.J. 458, 466 (2009) ("The text of the United States Constitution

nowhere enumerates a power to regulate immigration.").

(152.) Stephen H. Legomsky, Immigration Law and the Principle of

Plenary Congressional Power, 1984 SUPREME COURT REV. 255, 255 (1984)

(introducing the term "plenary power doctrine" and critiquing

the Supreme Court's rationales for the doctrine). For insight into

the domestic and global climate in which the plenary power doctrine was

devised, see Johnson, supra note 144, at 1113 (discussing that the

plenary power doctrine was created "in an era when Congress acted

with a vengeance to exclude Chinese immigrants from [America's]

shores"); see also Peter J. Spiro, Explaining the End of Plenary

Power, 16 GEO. IMMIGR. L.J. 339, 349 (2002) ("[T]he international

context from which [plenary power] emerged ... was historically

characterized by the proto-anarchical nature of relations among states

and the resulting need to centralize foreign policymaking in

non-judicial institutions.").

(153.) Cox & Rodriguez, supra note 151, at 460 (positing that

this articulation of plenary power is indicative of jurisprudence that

largely treats "the political branches as something of a singular

entity").

(154.) Id. at 467 (citing Chae Chan Ping v. United States (The

Chinese Exclusion Case), 130 U.S. 581, 609 (1989)). Professor Motomura

defines the doctrine as establishing that "Congress and the

Executive branch have broad and often exclusive authority in immigration

matters" (without judicial oversight for constitutionality).

Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural

Surrogates for Substantive Constitutional Rights, 92 COLUM. L.

REV. 1625, 1626 (1992). See also Abrams, supra note 9, at 601

(defining plenary power doctrine as giving "the political branches

special deference when passing or executing immigration legislation,

even where doing so would otherwise violate individual constitutional

rights"); Adam B. Cox, Citizenship, Standing, and Immigration Law,

92 CALIF. L. REV. 373, 375 (2004) (discussing the plenary power doctrine

generally from the viewpoint of citizens, rather than noncitizens).

(155.) Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)

("[T]he decisions of executive or administrative officers, acting

within powers expressly conferred by Congress, are due process of

law.").

(156.) Fong Yue Ting v. United States, 149 U.S. 698 (1893).

(157.) Id. at 730.

(158.) Id. See also Daniel Kanstroom, Deportation, Social Control,

and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113

HARV. L. REV. 1889, 1897 (2000) (describing Fong Yue Ting as "the

first case to determine that the source of federal deportation power was

the same as the source of the power to exclude.").

(159.) Kanstroom, supra note 158, at 1897.

(160.) Professor Kanstroom cites Yamataya v. Fisher, 189 U.S. 86

(1903), for limiting the Fong Yue Ting ruling. Kanstroom, supra note

158, at 1897. Also known as The Japanese Immigrant Case, Yamataya opened

the door for due process rights to apply to non-citizens by establishing

that noncitizens who have already entered the U.S., even unlawfully, are

entitled to more due process than those excluded at a port of entry. See

Yamataya, 189 U.S. at 101 (stating that executive officials could not

arbitrarily expel a person "without giving him all opportunity to

be heard upon the questions Involving his right to be and remain in the

United States"). In doing so, however, the Court found that the

decisions of administrative or executive officers acting under their

delegated powers constituted due process of law and were not subject to

judicial review. Id. at 102. Finding that the noncitizen had been

afforded an opportunity to be heard, the Yamataya opinion echoed the one

the Court made in Ekiu, namely that the process given to a noncitizen is

the process due. See id.

(161.) Gabriel J. Chin, Regulating Race: Asian Exclusion and the

Administrative State, 37 HARV. C.R.-C.L. L. REV. 1, 43 (2002).

(162.) See id. ("Chinese immigrants earned a rare win from the

Supreme Court in Wong Wing v. United States.").

(163.) Wong Wing v. United States, 163 U.S. 228 (1896).

(164.) Sinha, supra note 36, at 9.

(165.) Specifically, the Court asserted that "detention or

temporary confinement, as part of the means necessary to give effect to

the provisions for the exclusion or expulsion of aliens, would be

valid." Wong Wing, 163 U.S. at 235. The Court continued:

"Proceedings to exclude or expel would be vain if those accused



could not be held in custody pending the inquiry into their true

character and while arrangements were being made for their

deportation." Id.

(166.) Chin, supra note 161, at 44.

(167.) This is why Professor Chin states that, "[w]hile Wong

Wing held federal action through summary process unconstitutional, in an

odd way it has operated to enhance rather than restrict government

authority." Id.

(168.) See David Cole, In Aid of Removal: Due Process Limits on

Immigration Detention, 51 EMORY L.J. 1003, 1006 (2002)

("Immigration detention is by definition 'preventive'

because the INS [now DHS] has no authority to detain for punitive

purposes.").

(169.) Id.

(170.) See, e.g., David S. Rubenstein, Immigration Structuralism, 8

DUKE J. CONST. L. & PUB.

POL'Y 81, 99 (2013) ("For generations now, the plenary

[power] doctrine has been widely assaulted as an anachronism with little

descriptive or normative appeal."); Peter H. Schuck, Taking

Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 57 (2007)

("Despite the plenary power doctrine's authority, it has been

assailed over the years by many academics and defended, I think, by

none."); Brian G. Slocum, Canons, the Plenary Power Doctrine, and

Immigration Law, 34 FLA. ST. U. L. REV. 363, 369 (2007) ("The

elimination of the plenary power doctrine would be a welcome development

in immigration law."); Stephen H. Legomsky, Ten More Years of

Plenary Power: Immigration, Congress, and the Courts, 22 HASTINGS CONST.

L.Q. 925, 937 (1995) (stating the plenary power doctrine is a

"constitutional oddity," "has never been adequately

explained" and it is time to "clean the slate").

(171.) Immigration and Nationality Act of 1952 [section]236(a).

(172.) INA [section]236(a)(2).

(173.) See INA [section]236(c) ("The Attorney General shall

take into custody any alien" who is inadmissible or deportable

based on criminal or terrorism grounds, or deportable for a crime of

moral turpitude "for which the alien has been sentence to a term of

imprisonment of at least 1 year.").

(174.) Zadvydas v. Davis, 533 U.S. 678 (2001).

(175.) Spiro, supra note 152, at 345.

(176.) INA [section] 241(a)(2) provides for mandatory detention of

individuals for ninety days after an order of removal becomes final.

(177.) Farrin R. Anello, Due Process and Temporal Limits on

Mandatory Immigration Detention, 65 HASTINGS L.J. 363, 371-72 (2014).

Professor Anello continues: "The Court rested its decision [in

Zadvydas] on the United States v. Salerno line of due process cases,

making clear that immigration detention was subject to the same due

process limits as other forms of civil detention." Id. at 372.

(178.) Zadvydas, 533 U.S. at 690.

(179.) Id. at 372 (citing Zadvydas, 533 U.S. at 690); see also

Spiro, supra note 152, at 345 ("Zadvydas was by its terms not a

definitive constitutional ruling; all the Court did, as a formal matter,

was to interpret the relevant statute as not affording the Attorney

General the power to undertake indefinite detentions. But that holding

was grounded in the doctrine of serious constitutional doubt.... It

would take no great step to convert Zadvydas' exercise in statutory

construction into a ruling on the constitutional merits.").

(180.) 538 U.S. 510 (2003).

(181.) Id. at 513.

(182.) Anello, supra note 177, at 374. ("In the brief majority

opinion, the Court dismissed the respondent's due process claims

with little constitutional analysis.").

(183.) Bradley B. Banias, A "Substantial Argument"

Against Prolonged, Pre-Removal Mandatory Detention, 11 RUTGERS RACE

& L. REV. 31, 32 (2009).

(184.) Kim, 538 U.S. at 513 (emphasis added).

(185.) Id. at 530 n.12.

(186.) At the time Demore was argued and decided, the immigration

agency, Immigration and Naturalization Services (INS) was under the

Department of Justice, as the Department of Homeland Security was just

about to operationalize.

(187.) Jess Bravin, Justice Department Gave Supreme Court Incorrect

Data in Immigration Case, WALL ST. J. (Aug. 30, 2016),

http://www.wsj.com/articles/

justice-department-gavesupreme-court-incorrect-data-in-immigration-case-1472569756.

(188.) Id.

(189.) Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert.

granted sub nom., Jennings v. Rodriguez, 2016 WL 1182403 (U.S. June 20,

2016) (No. 15-1204).

(190.) The DOJ letter to the Supreme Court concerning incorrect

data submitted for the Demore case expressly stated that the data is

relevant to the Jennings case. Bravin, supra note 187.

(191.) Lora v. Shanahan, 804 F.3d 601 (2d. Cir. 2015);

Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469 (3d. Cir.

2015).

(192.) Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016).

(193.) The Ninth Circuit interpreted the plain language of the

statute, specifically the phrase "when ... released," to mean

upon release from criminal custody and not after the noncitizen was

released and resettled into the community. Id. at 1207. In the latter

situation, the court held that the noncitizen had a right to a bond

hearing. Id.

(194.) See Franco-Gonzales v. Holder, No. 10-CV-02211-DMG (DTBx),

2011 WL 5966657, at *6 (C.D. Cal. 2011) (holding that the Plaintiff

demonstrated a likelihood of irreparable harm and the balances of

hardships tip in his favor, that granting the Plaintiff a motion for a

custody hearing is in the public interest, and that the Plaintiff had

exhausted administrative remedies).

(195.) Rhonda Brownstein, The Corrections Corporation of America is

Blocking Immigrants from Seeing their Lawyers at a Georgia Detention

Center, HUFFINGTON POST (July 5, 2016),

http://www.huffingtonpost.com/rhonda-brownstein/the-corrections-corporati_b_10819892.html.

See also Abira Ashfaq, Invisible Removal, Endless Detention,

Limited Relief: A Taste of Immigration Court Representation for Detained

Noncitizens, in KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO

IMMIGRATION ENFORCEMENT TODAY 179-203 (David C. Brotherton & Philip

Kretsedemas ed., 2008).

(196.) Immigrants Detained in Georgia to Get Better Access to

Counsel After SPLC Complaint, SOUTHERN POVERTY LAW CENTER (Sept. 6,

2016), https://www.splcenter.org/news/2016/09/06

/immigrants-detained-georgia-get-better-access-counsel-after-splc-complaint.

(197.) These internal enforcement priority memos commenced in 2011.

John Morton, U.S. Immigration and Customs Enforcement Director,

Exercising Prosecutorial Discretion Consistent with the Civil

Immigration Enforcement Priorities of the Agency for the Apprehension,

Detention, and Removal of Aliens (June 17, 2011),

https://www.ice.gov/doclib/secure-communities/pdf

/prosecutorial-discretion-memo.pdf. This policy was reinforced by DHS

Secretary. Jeh Johnson, Secretary, U.S. Dept. of Homeland Security,

Policies for the Apprehension, Detention and Removal of Undocumented

Immigrants (Nov. 20, 2014), https://www.dhs

.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.

(198.) See supra notes 70 and accompanying text.

(199.) See text accompanying supra note 71.

(200.) Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The

Mathews' balancing test weighs the burden of the deprivation of an

individual's interest against the burden on the government of

affording increased due process, as well as the risk of erroneous

deprivation and the probable value of additional procedural safeguards.

Id.

(201.) See id.

(202.) Eleanor Acer & Jake Goodman, Reaffirming Rights: Human

Rights Protections of Migrants, Asylum Seekers, and Refugees in

Immigration Detention, 24 GEO. IMMIGR. L.J. 507, 508 (2010).

(203.) Laura S. Adams, Divergence and the Dynamic Relationship

Between Domestic Immigration Law and International Human Rights, 51

EMORY L.J. 983, 999 (2002).

(204.) This divergence is particularly stark because, as Professor

Adams points out, "[t]he criminalization of migration in the United

States has occurred at the same time that the United States has accepted

greatly enhanced international human rights obligations." Id. at

985.

(205.) See, e.g., Azadeh Shahshahani & Ayah Natasha El-Sergany,

Challenging the Practice of Solitary Confinement in Immigration

Detention in Georgia and Beyond, 16 CUNY L. REV. 243, 262-68 (2013)

(discussing international treaties ratified by the U.S., regional

treatises, and special rapporteurs as challenging the practice of

solitary confinement of immigrant detainees); Cathryn Costello, Human

Rights and the Elusive Universal Subject: Immigration Detention Under

International Human Rights and EU Law, 19 IND. J. GLOBAL LEGAL STUD.

257, 261-63 (2012) (addressing the dissonance between universalism and

statism in understanding and advance human rights); Gwynne Skinner,

Bringing International Law to Bear on the Detention of Refugees in

United States, 16 WILLIAMETTE J. INT'L. L. & DISP. RESOL. 270

(2008).

(206.) Denise Gilman, Realizing Liberty: The Use of International

Human Rights Law to Realign Immigration Detention in the United States,

36 FORDHAM INT'L. L.J. 243 (2013).

(207.) See id. at 261-63 ("For more than forty years after the

signing of the Universal Declaration of Human Rights in 1948 and the

birth of modern human rights law, international bodies made little

effort to analyze the application of human rights norms to immigration

detention.... [But then beginning in the 1990s,] international human

rights focused on the situation of refugees and asylum seekers in

applying human rights norms to immigration detention. The UN High

Commissioner for Refugees ... first formulated specific guidelines to

circumscribe the detention of refugees and asylum seekers in 1995 and

then revised those guidelines shortly after in 1999.").

(208.) See id. at 263 n.81 (citing reports by the United Nations

Commission on Human Rights' Working Group on Arbitrary Detention

and the United Nations Special Rapporteur on the Human Rights of

Migrants). Other international human rights bodies have addressed the

American immigration detention system, but not specifically or in great

detail issues pertaining to the bed quota. See, e.g., INTER-AM.

COMM'N ON HUMAN RIGHTS, ORG. OF AM. STATES, REPORT ON IMMIGRATION

IN THE UNITED STATES: DETENTION AND DUE PROCESS 1, 8 (2010) ("[T]he

DHS report describes the 'unique challenges associated with the

rapid expansion of ICE's detention capacity from fewer than 7,500

beds in 1995 to over 30,000 today, as the result of congressional and

other mandates.'").

(209.) Article 3 of the UDHR provides: "Everyone has the right

to life, liberty and security of person." Laurent Marcoux, Jr.,

Protection from Arbitrary Arrest and Detention Under International Law,

5 B.C. INT'L & COMP. L. REV. 345, 345 (1982) (citing G.A. Res.

217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948)).

Article 31(2) of The Convention Relating to the Status of Refugees,

which went into effect in 1954, prohibits "restrictions on

refugees' movements" outside of circumstances when those

restrictions are "necessary." Skinner, supra note 205, at 280.

(210.) G.A. Res. 217 (III) A, Universal Declaration of Human Rights

(Dec. 10, 1948).

(211.) G.A. Res. 2200 (XXI) A, International Covenant on Civil and

Political Rights (Mar. 23, 1976).

(212.) U.N. Human Rights Comm., General Comment No. 35, at 7 (Dec.

16, 2014), http://www.legal-tools.org/uploads/tx_ltpdb/G1424451.pdf.

(213.) Id. at [paragraph] 18.

(214.) Gilman, supra note 206, at 269.

(215.) An Inter-American Commission on Human Rights Report

specifically stated concern for the fact that "vulnerable groups

figure prominently among those being held in immigration

detention." INTER-AM. COMM'N ON HUMAN RIGHTS, supra note 208,

at 35.

(216.) Lifeline on Lockdown: Increased U.S. Detention of Asylum

Seekers, HUMAN RIGHTS FIRST 11,

http://www.humanrightsfirst.org/sites/default/files/Lifeline-on-Lockdown_0.pdf. To contrast, in 2010, ICE detained 15, 769 asylum seekers. Id.

(217.) U.N. High Commissioner on Refugees, Detention Guidelines:

Guidelines on the Applicable Criteria and Standards Relating to the

Detention of Asylum-Seekers and Alternatives to Detention, at 6, 15

(2012) [hereinafter UNHCR Guidelines] ("The rights to liberty and

security of person are fundamental human rights, reflected in the

international prohibition on arbitrary detention, and supported by the

right to freedom of movement.").

(218.) Id. at 15. The United Nations Committee Study of the Right

of Everyone to be Free from Arbitrary Arrest, Detention and Exile

conducted an extensive study of the meaning of "arbitrary,"

and concluded that it encompasses more than illegal and came up with the

following definition: "Arrest or detention is arbitrary if it is

(a) on the grounds or in accordance with procedures other than those

established by law or (b) under the provisions of a law, the purpose of

which is incompatible with the right to liberty and security of

person." Marcoux, supra note 209, at 366.

(219.) UNHCR Guidelines, supra note 217, at 21. The UNHCR

Guidelines are in part interpretations of earlier proclamations as to

the rights of refugees, such as the Convention Relating to the Status of

Refugees, promulgated in 1954, the latter which prohibits restrictions

on refugees' movements, unless such restrictions are

"necessary." Convention Relating to the Status of Refugees,

art. 31(2), Apr. 22, 1954, 189 U.N.T.S. 150.

(220.) See, e.g., G.A. Res. 44/25, Convention on the Rights of the

Child, art. 37(b) (Sept. 2, 1990) (prohibiting arbitrary deprivation of

liberty, and stating that the detention "of a child ... shall be

used only as a measure of last resort.").

(221.) Planas, supra note 92.

(222.) See, e.g., Stephanos Bibas, The Truth About Mass

Incarceration, NAT'L REV. (Sept. 16, 2015),

http://www.nationalreview.com/article/424059/mass-incarceration-prison-reform (arguing that "just because liberals are wrong does not mean

the status quo is right" to take the position that while mass

incarceration is not about race, it is still not good policy.). See also

MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS (2010); Dorothy E. Roberts, The Social and Moral Cost of

Mass Incarceration in African American Communities, 56 STAN. L. REV.

1271 (2004).

(223.) See Anita Sinha, Ending Mass Incarceration, But Not for

Immigrants: A Tale of Two Policies, HUFFINGTON POST (July 27, 2015),

http://www.huffingtonpost.com/anita-sinha/

endingmass-incarceration-but-not-for-immigrants_b_7874750.html

("Conspicuously absent from this conversation, however, is the fact

that immigration detention is now the 'largest mass incarceration

movement in U.S. history'"). The one exception is the current

review called by the DHS Secretary on the use of private prison

corporations in the operation of the detention facilities, following the

DOJ announcement that the government will stop using private companies

for prisons and jails. See supra text accompanying notes 93-112.

(224.) Nick Miroff, Controversial Quota Drives Immigration

Detention Boom, WASH. POST (Oct. 13, 2013),

https://www.washingtonpost.com/world/controversial-quota-drives-immigrationdetention-boom/ 2013/10/13/09bb689e-214c-11e3-ad1a-1a919f2ed890_story.html. According to the Pew Research Center, there has been a decrease

in unauthorized immigration into the United States since the "Great

Recession" of 2007-2009. See JEFFREY S. PASSEL & D'VERA

COHN, PEW RESEARCH CTR., UNAUTHORIZED IMMIGRANT POPULATION STABLE FOR

HALF A DECADE (2015),

http://www.pewresearch.org/fact-tank/2015/07/22/unauthorized-immigrant-populationstable-for-half-a-decade/.

(225.) WADHIA, supra note 19, at 7.

(226.) Erin Corcoran, Seek Justice, Not Just Deportation: How to

Improve Prosecutorial Discretion in Immigration Law, 48 LOY. L.A. L.

REV. 119, 134-35 (2014).

(227.) Madison Burga & Angelina Lerma, The Use of Prosecutorial

Discretion in the Immigration Context After the 2013 ICE Directive:

Families are Still Being Torn Apart, 42 W. ST.

L. REV. 25, 29 (2014); see also Maria A. Fufidio, Note, "You

May Say I'm a Dreamer, but I'm not the Only One":

Categorical Prosecutorial Discretion and its Consequences for US

Immigration Law, 36 FORDHAM INT'L L.J. 976, 986 (2013)

("[I]mmigration officials have been granting discretionary relief

from deportation to immigrants prior to the formal recognition of this

practice in the mid-1970s.").

(228.) See Burga & Lerma, supra note 227, at 30 (discussing the

two principles of economic constraints and humanitarian concerns in

using prosecutorial discretion).

(229.) JOHN MORTON, U.S. DEP'T OF HOMELAND SEC., U.S.

IMMIGRATION & CUSTOMS ENF'T, EXERCISING PROSECUTORIAL

DISCRETION CONSISTENT WITH THE CIVIL IMMIGRATION ENFORCEMENT PRIORITIES

OF THE AGENCY FOR THE APPREHENSION, DETENTION, AND REMOVAL OF ALIENS

(2011), https://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf.

(230.) WADHIA, supra note 19, at 8.

(231.) Id.

(232.) See supra notes 11-13 and accompanying text.

(233.) Torrey, supra note 16, at 6.

(234.) Maria Mendoza, A System in Need of Repair: The Inhumane

Treatment of Detainees In the U.S. Immigration Detention System, 41 N.C.

J. INT'L LAW 405, 445 (2016) ("In 2007, ICE introduced the

Enhanced Supervision/Reporting Program ('ESR'), which uses

several of the same procedures as ISAP, in addition to supervisory tools

such as residence verification. At present, 'ISAP and ESR ... can

supervise 6,000 and 7,000 individuals, respectively.'").

(235.) See Shana Tabak & Rachel Levitan, LGBTI Migrants in

Immigration Detention: A Global Perspective, 37 HARV. J.L. & GENDER

1, 44 (2014) ("Ultimately, states should heed the recommendations

by UNHCR ... by providing alternatives to detention for all

self-identifying sexual minorities.").

(236.) LUTHERAN IMMIGRATION AND REFUGEE SERV., ALTERNATIVES TO

DETENTION: HISTORY AND BACKGROUND (2013),

http://lirs.org/wp-content/uploads/2014/01/LIRS-Backgr

ounder-on-Alternatives-to-Detention-12-6-13.pdf.

(237.) Eric Brickenstein, Making Bail and Melting Ice, 19 LEWIS

& CLARK L. REV. 229, 230 (2015) (citing Jessica Vaughan, Enforcement

Metrics Support Case for Detention Bed Mandate, CENTER FOR IMMIGR. STUD.

(Nov. 24, 2013), http://cis.org/vaughan/enforcement-metricssupport-case-detention-bed-mandate)).

(238.) U.S. COMM'N ON CIVIL RIGHTS, STATUTORY ENFORCEMENT

REPORT: WITH LIBERTY AND JUSTICE FOR ALL: THE STATE OF CIVIL RIGHTS AT

IMMIGRATION DETENTION FACILITIES, at 65 (Sept. 2015),

http://usccr.gov/pubs/Statutory_Enforcement_Report2015.pdf. See also

Mark Noferi, Making Civil Immigration Detention "Civil," and

Examining the Emerging U.S. Civil Detention Paradigm, 27 J. C.R. &

ECON. DEV. 533, 569 (2014) ("Immigration detention has the dual

goal of preventing flight before deportation, which can be adequately

addressed through less restrictive measures than incarceration.").

(239.) HUMAN RIGHTS FIRST, IMMIGRATION DETENTION: HOW CAN THE

GOVERNMENT CUT COSTS?, (2013),

http://www.humanrightsfirst.org/uploads/pdfs/immigration-detention-factsheet-jan-2013.pdf.

(240.) Chacko, supra note 30.

(241.) Id.

(242.) Brickenstein, supra note 237, at 240.

(243.) Hernandez, supra note 70, at 1504.

(244.) See ALEXANDER, supra note 222, at 218-20.

(245.) Hernandez, supra note 70, at 1505.

(246.) Tracy Alloway & Lily Katz, Private Prison Stocks Are

Surging After Trump's Win, BLOOMBERG (Nov. 9, 2016),

https://www.bloomberg.com/news/articles/2016-11-09/

privateprison-stocks-are-surging-after-trump-s-win.

(247.) Id.

Oh, No, An Airport by Alan Hawkins

The Odd Truth, April 12, 2003

The Odd Truth is a collection of strange but factual news stories from around the world compiled by CBSNews.com's Brian Bernbaum. A new collection of stories is published each weekday. On weekends, you can read a week's worth of The Odd Truth.

Pub Rage

LONDON - A British businessman who attacked his own pub with a bulldozer has been sentenced to 200 hours community service.

Robert Tyrrell had pleaded guilty to demolishing part of the 16th century North Star Inn, about 60 miles northwest of London, on New Year's Day.

Prosecutors said Tyrrell, who owns the pub, attacked the building after staff refused to serve him a drink after hours.

Students Sue School Over Restroom Peepholes

BOULDER, Colo. - Nine female students at the University of Colorado are looking to give the school a legal poke in the eye -- over peepholes in dorm bathrooms. Attorneys for the women filed a lawsuit yesterday naming the school and two construction companies as defendants. The legal action charges the school failed to warn female students about peepholes discovered in a women's dormitory restroom. A construction worker has admitted he used the holes to watch coeds in the shower. The suit asks for unspecified monetary damages and an official apology from CU.

Missing Girl Reappears During Murder Trial

CANBERRA, Australia - Whodunnit? Nobody.

Australian teenager Natasha Ryan, who disappeared four years ago and was presumed dead, has resurfaced -- midway through the trial of her alleged murderer.

Ryan, 18, was found Thursday, living with her boyfriend in a house just half a mile from her mother's home in the coastal town of Rockhampton in Queensland state. She was being questioned by police Friday, after being found hiding in a cupboard.

Ryan's reappearance coincided with the trial in a Queensland court of Leonard John Fraser, 51, who was charged with the murder of her and three other women. Prosecutors immediately dropped the charge against Fraser for Ryan's murder.

Ryan disappeared when she was 14. Her family had been so sure she was dead, they held a memorial service for her a year ago.

Ryan's father confirmed his daughter's identity over the phone by asking her to tell him his pet name for her. She answered correctly.

It was not immediately clear if the boyfriend, Scott Black, would be charged with any offense.

The family's lawyer Ross Lo Monaco said that when police phoned the mother, Jenny Ryan, on Thursday to tell her they had found Natasha, she at first assumed they were talking about a body.

"Mrs. Ryan was in shock, she didn't know if she could believe it and she was concerned it may have been a false alarm," Lo Monaco told reporters.

Justice With A Flush

TALLAHASSEE, Fla. - The state Supreme Court reprimanded a judge Thursday and ordered him to write letters of apology to 12 people he offended with belittling courtroom remarks.

The court said it would have taken even stronger action for the ethics violations, but Circuit Judge Sheldon Schapiro had admitted fault and was undergoing behavioral therapy.

The court's opinion cited 13 examples of the judge's misconduct.

Once, addressing a defense attorney, Schapiro allegedly said: "Do you know what I think of your argument?" and then pushed a button on a device that simulated the sound of a toilet flushing.

83-Year-Old Jailed Over Land Feud

ENFIELD, Conn. - Augustus J. Simmons would rather go back to prison than give up his land.

The 83-year-old man has been battling for four decades with the state over land at Bradley International Airport.

Simmons was sentenced to a year in prison for his latest legal skirmish. He claims the state illegally took 14 acres of land from him in 1962.

"I have no different penal code for people who are seniors but who want to act like children," Superior Court Judge E. Curtissa R. Cofield said before sentencing Simmons this week.

Simmons was last arrested on March 14 when officials said he roped off a parking lot at the airport and allegedly cursed two Army National Guard members patrolling the grounds. He was convicted of breach of peace, interfering with an officer, disorderly conduct and violating probation.

In 2001, Simmons began serving a sentence for pulling down fencing at the airport. He was released on probation last year.

The state Supreme Court in 1980 had upheld a ruling that Simmons be paid $365,000 by the state for the land, but he refused to accept the check or to cash it. The $365,000 eventually was returned to the state treasury as unclaimed property.

Kid Car Thief

READING, Penn. - Police say a 12-year-old boy who is barely tall enough to see over the steering wheel tried to steal a car this week.

And they say it's the second time he's tried to do it.

A police sergeant says the boy "looks like he should be playing with Hot Wheels cars, not stolen cars."

They say he used a homemade key to unlock the car while another boy acted as a lookout. The car's owner saw the child inside the car and chased him.

The boy is scheduled to appear in juvenile court. Police say he's already on probation for trying to steal a car last July.

KGB Jokes Crack-Up Latvia

RIGA, Latvia - What has four legs and 40 teeth? A crocodile. What has four teeth and 40 legs? The Central Committee of the Communist Party.

That joke drew laughs and applause among nearly 70 Latvians gathered amid poster-size portraits of Josef Stalin and grainy photographs of KGB death squads in Riga's Occupation Museum.

Poking fun at elderly Soviet leaders could have landed a joke-teller in jail before this small Baltic Sea state of 2.4 million residents declared independence during the Soviet collapse in 1991.

"In the old days, you only whispered these jokes among your most trusted friends and family," said Heinrihs Strods, host of Wednesday's first-ever Soviet joke night at the museum, which houses artifacts documenting 50 years of iron-fisted Soviet rule.

One of the night's favorite targets was Leonid Brezhnev, the bushy browed Soviet leader from 1964 to 1982 who was famous for his public gaffes.

"Upon hearing the Americans had put a man on the moon in 1969, Brezhnev summoned his cosmonauts," one elderly woman said quietly. "'Comrades,' he told them. 'You will be the first men on the sun.'

"'But comrade Brezhnev, it's too hot on the sun -- surely we will die,' they answered," she said. "'Don't worry,' Brezhnev replied. 'We have decided you will go at night."'

From 'French' To 'Freedom,' Then Back Again

WEST HARTFORD, Conn. - There will be no name change at the French Cleaners.

A bit of patriotic fervor had prompted the owners of the 92-year-old dry cleaning business to change its name from French Cleaners to Freedom Cleaners.

Owner L. Philip Cote had said last month that some of his customers had become uncomfortable with his company's name since France began opposing U.S. military action in Iraq.

Cote went to Town Hall to get a permit to operate as Freedom Cleaners and had begun changing the signs on his trucks and parking spaces, but held off changing the big sign on the store.

After taking a poll of his customers, Cote said Wednesday the decision was made to keep the name that has been on the door since 1911.

No Blossoming Bosoms At This Blossom Festival

WENATCHEE, Wash. - City business leaders and police want to keep this year's Apple Blossom Festival under wraps.

They're asking stores not to sell beaded necklaces during the festival, to avoid a repeat of last year when young men offered beaded necklaces to young women, hoping to entice them to bare their breasts, Mardi Gras-style.

"I don't think women exposing themselves is part of family fun," said Craig Larsen, a Wenatchee Valley Chamber of Commerce executive and a city councilman.

In its newsletter this month, the chamber and police urged businesses not to sell the necklaces during the April 24-May 4 event, which attracts about 100,000 visitors to this north-central Washington city each year.

Last year, 21 people were cited for lewd conduct and three for indecent exposure, said police Sgt. Ken Manke.

Gary Cockerham, owner of the Your Dollar Store With More, considers the necklaces harmless. The store sells a pack of four bead necklaces for $2.

"Someone is trying to legislate morality," he said. "I think that's weird."

Salon Clipped For $6,000 In Bad Hair Suit

ST. LOUIS - A jury awarded $6,000 to a woman who sued a hair salon, claiming that bad hair treatment left her depressed and led her to seek early retirement.

Geremie Hoff, 56, of suburban Creve Coeur, sued the Elizabeth Arden Salon for emotional distress, depression, counseling and lost income.

According to testimony, Hoff went to the salon Aug. 9, 2001, seeking to have her curly hair straightened.

Stylist Reye Hudson, who is still with the salon but was not named in the suit, applied a hair relaxer, then washed and styled Hoff's hair.

Hoff testified that clumps of her hair came loose that night, and her resulting bald spots and brittle hair made her depressed and reclusive. Her daughter testified about Hoff's emotions, as did a psychiatrist and counselor.

Hoff's attorney, Paul Devine, said she was so distressed she retired early from teaching at the University of Missouri-St. Louis and stopped working as a tour guide for trips to Italy.

Defense attorney Lawrence Hartstein said Hudson didn't test Hoff's hair before applying the product, but that the stylist could judge who needed one based on her 30 years of experience.

Jurors found the stylist negligent. They did not describe how they arrived at the $6,000 figure.

Burning Down The House

ELMA, Wash. - Police Chief Greg Adams was planning to fix up a vacant two-story house for his ailing parents. Apparently, no one told the fire department.

Firefighters burned the building to the ground believing it had permission to do so for training purposes.

"We're just totally sick at the whole thing," Adams said. "Seriously, the other night we couldn't sleep when we found out about it. It's just devastating."

The chief and his wife were away for the weekend when the volunteer fire department burned the structure as part of a weekend exercise.

"Initially, we had made plans to have a controlled burn and have it brought down to the ground," Adams said. But he said he notified the fire department that his plans had changed.

Fire Chief Dave Osgood said he was not told of any change.

"He knew we were going to burn the house down," Osgood said. "He knew it was coming. I don't see what the problem is. It's down on the ground, and the lot is ready for a new house."

Naked Bus Thief Detained

CHESTER, West Virginia - Charges of indecent exposure are the least of Mohammed Jwad Salem's problems. Authorities in Chester, West Virginia, accuse Salem of being the streaker who stole a shuttle bus. Police say Salem was naked when he ran around a parking lot at the Mountaineer Race Track and Gaming Resort.

He allegedly took a bus and drove about a mile before getting stuck in a muddy field. Deputies busted Salem and took him to a place where he could get something to wear - the Hancock County Jail. Salem now faces a number of charges including indecent exposure, grand larceny and resisting arrest.

Lawmakers Oppose 'Real Beverly Hillbillies'

BATON ROUGE, La. - State Sen. Mike Smith's resolution urging CBS to forget about making "The Real Beverly Hillbillies" was approved 23-1 Wednesday by the state Senate.

Smith, D-Winnfield, has joined critics of the proposed program around the country, saying it will hold the rural poor up to ridicule.

"The Real Beverly Hillbillies" purportedly would chronicle the experiences of a rural, lower-middle-class family that moves into a luxurious Beverly Hills mansion.

Smith's resolution still needs passage by the House.

Meanwhile, CBS says the program is still in the development stages and may never air.

1840 Poe Letter Scares Up $20,000

MILWAUKEE - An 1840 letter by Edgar Allan Poe that was found in a Milwaukee church's safe has been auctioned off for $20,000.

The rector of St. Paul's Episcopal Church, the Reverend Amy Richter, says she's thrilled at the discovery and its benefit to the church.

An official at Christie's auction house says the American author's letter was purchased by a New York firm that deals in rare books.

The church volunteer who discovered Poe's letter last year estimates that St. Paul's will get more than $18,000 after paying a commission and other fees to Christie's.

The church plans to use the money for its music program.

Playboy Sues Over 'Sex Court'

NEW YORK - Judge Judy, it's not.

But Playboy Enterprises is so serious about its "Sex Court" television show, it has gone to real court to get an adult Web site to stop using the name.

In a counter-suit, the Web site has claimed it had the name first and should get a piece of the $8.9 million the show has made.

"I feel if I create something, I should have a right to the name," the founder of the site, Mario Cavalluzzo, told jurors Wednesday at the trademark infringement trial in federal court.

The case was expected to go to the jury later this week.

Cavalluzzo testified that he launched his Web site in May 1998 because "it looked like there was money to be made." He described registering the Sex Court domain name, unaware Playboy was developing a show with the same name.

Playboy debuted "Sex Court" on its cable television channel the same year, billing it as a show "brimming with erotic crimes and misdemeanors." It features a scantily clad judge presiding over sexual disputes between couples.

The lawsuit brought by Playboy in 2000 alleges the Web site has tarnished its name by giving consumers the false impression it was "sponsored or endorsed by or originates from Playboy."

U.S. Department Of Peace Proposed

WASHINGTON - There's a Department of Defense, so why not a Department of Peace? That's the thinking of some anti-war Democrats. Four dozen Democrats have introduced a bill to create a Cabinet-level Department of Peace. California Congresswoman Barbara Lee says there's no department in the government that looks at alternatives to war. But the sponsors know they have tough fight to get their Peace Department bill passed. Lee says it's more of a symbolic gesture.

Police Dogs, Yes, Mail Dogs, No

ASPEN, Colorado - There are police dogs, fire dogs and Army dogs -- but there won't be any mail dogs. Mailman Terry Trish has been ordered to leave his canine partner at home. Trish's golden retriever Sydney has been pulling a letter cart through the streets of downtown Aspen, Colorado. Trish says Sydney is a hit with people on his mail route. Postal customers give the canine letter carrier doggie treats and tourists want to take snapshots. But the Postal Service says having a mail dog violates safety regulations. One post office official notes that dogs bit 3,000 postal carriers last year.

Dolly The Sheep Doll

LONDON - The preserved body of Dolly the sheep, who gained worldwide fame as the world's first mammal cloned from an adult, went on display Wednesday at a Scottish museum.

Dolly, whose birth in 1996 was heralded as a scientific landmark but triggered heated debate about the ethics of cloning, was put to death Feb. 14 after a veterinarian confirmed she had a fatal lung disease. She was 6.

The Roslin Institute donated Dolly's remains to the National Museums of Scotland, where her skin was pickled and tanned to preserve it before being stretched over a fiberglass mold of her body and mounted on a straw-covered plinth.

Ian Wilmut, who led the team that cloned Dolly, said Wednesday that his pride at seeing her on display at Edinburgh's Royal Museum was tinged with sadness at her death from the lung tumor.

"It's not so many weeks ago since she was alive and in the barn, but we're very proud that's she in here," he said. "She will go on reminding people of the fact that scientific progress was made in Edinburgh which is making people think very differently about this aspect of biology."

Money Down The Drain

TUSCALOOSA - A Tuscaloosa man took the term flushing your cash down the drain literally. Well, almost.

Police say 21-year-old Travis Leon Jackson flooded three hotel rooms when he tried to flush counterfeit bills down a toilet as police officers raided his room Monday.

Jackson was charged with first-degree criminal mischief after allegedly causing more than $1,000 damage to his third-floor room and the ones below while trying to flush the fake cash.

The U.S. Secret Service is investigating and Jackson could also face federal charges.

The money was printed in $20, $50 and $100 denominations. Officers seized a color printer, currency and other items relating to counterfeiting when they arrested Jackson.

Police also say they found large quantities of marijuana at Jackson's home.

Cop Pleads Guilty In Forced Strippings

CENTRAL ISLIP, N.Y. - A former police officer pleaded guilty to charges that he forced four women to strip after he pulled them over for traffic violations.

Prosecutors said Frank Wright, 36, forced one woman to walk home wearing only her underwear. He pleaded guilty to civil rights violations carrying up to five years and three months in prison.

No sentencing date was set, Assistant U.S. Attorney Sanford Cohen said. A telephone call to Wright's attorney for comment Tuesday was not returned.

Court documents filed by federal prosecutors in February accused Wright of mistreating more than a dozen women, while on patrol on Long Island between 1998 and 2000.

Several women said they were driven to isolated locations, sometimes in handcuffs, after they were stopped by Wright. Some were released without being forced to disrobe.

Bad Hair Years

ST. LOUIS - A woman is suing a suburban St. Louis hair salon, claiming failed work on her hair caused her depression and the loss of her job.

Geremie Hoff is suing the Elizabeth Arden Salon, where she went in August 2001 to get her hair straightened or relaxed.

Hoff's attorney, Paul Devine, said Monday that the work on Hoff's hair was so bad that Hoff "shut down. She spiraled into a depression because, right or wrong, looks were important to her."

The salon's attorney, Lawrence Hartstein, told the jury in his opening statement that the stylist, Raye Hudson, had performed "hundreds if not thousands of these procedures" and did nothing wrong in treating Hoff's hair.

Devine alleged that Hudson failed to do a test strand before applying a hair product.

Hoff, now 56, was a teacher at the University of Missouri-St. Louis and a tour guide for trips to Italy. Devine alleged some of Hoff's hair fell out after the treatment, and weeks later she had a bald spot in back, "and her hair stuck out like a bird's nest."

Hoff took early retirement from teaching and stopped taking tour groups to Italy, Devine said. He added that a psychiatrist and a counselor will testify about her depression.

Bird Smokes In Bed, Burns Down Home

HARRISBURG, Pa. - Take one nest-building bird, add a smoldering cigarette butt and officials say they know what caused a house fire.

Fire Chief Donald Konkle said investigators found a large nest in the ceiling of the house damaged in the March 28 blaze. They determined a bird picked up a smoldering cigarette butt to use in building the nest.

Konkle said there were no other possible sources of fire in the area.

"The nest was 60 percent consumed and we weren't able to interview the bird," he said. "I believe he's homeless."

Mayor Stephen R. Reed cautioned residents against flicking lit cigarettes.

"This is at least littering, and if there are nearby birds building a nest, which they do in the spring months because of egg laying, there is a chance the cigarette winds up in the nest," Reed said.

Beethoven's Ninth Up For Auction

LONDON - A piece of music history is up for sale at Sotheby's in London.

The last manuscript of Beethoven's Ninth Symphony could sell for $4.6 million at an auction next month.

Almost all of the 575 pages of sheet music are noted with Beethoven's revisions. Some are minor tempo changes. But Beethoven's insults at the person who copied the work are also scrawled on the music.

At one point, Beethoven calls the copyist a "damned fool."

Sotheby's head of manuscripts describes the Ninth as "one of the greatest works every written by man." And he adds that this may be the last time a full Beethoven manuscript goes on the market.

Sotheby's says the current owner of the manuscript is a private foundation.

Wipe That Smile Off Your Face!

PALO ALTO, Calif. - The city council is wrestling with a code of conduct that urges elected officials to control facial gestures.

Experts say the council's plan to discourage nonverbal forms of disagreement or disgust is odd, unenforceable and almost an infringement on free speech.

"You'd be thinking all the time, 'What expression do I have on my face?'," said University of Kansas Professor Burdett Loomis, who specializes in political civility. "When is someone frowning? Maybe that's their ordinary look."

Palo Alto is the only city in Santa Clara County without a conduct handbook, according to Mayor Dena Mossar. The council began drafting one almost a year ago.

Council member Judy Kleinberg, who led the committee that drafted the guidelines, believes members should show each other more respect.

The eight-pages of proposed protocols will be reviewed by the City Council May 5.

Easter Bunny Busted In Prison Smuggling Scheme

PORT MANATEE, Fla. - An effort at playing Easter Bunny has put a Manatee County jail employee behind the bars he used to guard.

Authorities say Jesse Penaloza is charged with smuggling Easter candy, Mountain Dew and cigarettes into the jail to sell to an inmate. He's charged with bringing contraband to a correctional facility and other crimes.

Penaloza, who had worked on the jail's farm since 1996, was fired after his arrest. The Manatee County Sheriff's Office launched an investigation last week after receiving a tip.

Investigators say Penaloza twice was seen accepting $100 from an inmate's family member in exchange for soda, tobacco, rolling papers, and Rockin' Rabbit candy. The jail is a no-smoking facility but does sell soda and candy at its commissary.

Laughed Out Of The Bank

PINE BLUFF, Ark. - Police say they aren't sure what charge is appropriate for a man arrested after tellers laughed him out of a bank he apparently tried to rob.

The man entered a branch of the Bank of America about 10 a.m. Monday, with a trash bag in one hand and the other in a pocket, authorities said.

"Put the money in the bag," he demanded.

Instead, one of the two tellers told him the bank was out of money, and the other teller laughed and offered the man deposit slips. She told police that made the intruder angry, and he left without any money in his bag.

Minutes after tellers alerted authorities, a Jefferson County sheriff's deputy picked up Julius Kearney, 23, of Little Rock, as he walked nearby.

No weapon was found, and the man at the bank never threatened anybody, so police are unsure how the case will be handled.

"Technically, it could be robbery, and since it is in a bank, the FBI might also have some regulations about what we can charge him with," said police spokesman Robert Rawlinson.

"Either he'll be (in jail) or we will put him in for mental evaluation," Rawlinson said. "He's not just going to be released."

One Dead, 80 Million Bees Loose, After Truck Crash

TITUSVILLE - A Spacecoast truck driver is dead after his vehicle rolled, spilling its cargo of 80 million live bees on the Interstate 95 median.

Authorities say Conrad Cramer of Cocoa died at the scene of the midday wreck yesterday. But a swarm of bees that circled frantically around the overturned truck made recovery of the body impossible for a few hours.

Cramer had owned Cramer's Honey in Cocoa for more than 50 years. Family members say he was most likely heading to Orlando with a cargo of bees he'd recently collected from hives in Fort Pierce.

Beekeepers from Cramer's business worked to safely remove the bees by nightfall. The northbound lanes of I-95 were closed, and traffic was rerouted around the accident scene for about five hours.

What A Load Of Crap

CHEBOYGAN, Mich. - Police said two people used dog poop to settle a grudge.

Cheboygan County prosecutors authorized littering charges against Frank Scott, 51, and Sharyn Ostroske, 55. State police from the Cheboygan post say they threw 40 plastic bags filled with dog feces and toilet paper on the roadway in front of another person's house.

Troopers said the campaign began last November and extended through January. The suspects each face a $150 fine.

Wrongway Highway

TOKYO - An elderly Japanese man taking the freeway for the first time made it a trip to remember when he drove his pickup into oncoming traffic for 15 miles, ignoring patrol cars in pursuit and sideswiping a vehicle, police said Tuesday.

The incident Monday was first reported by a motorist who said he saw the pickup truck heading the wrong way down the three-lane Kanetsu Expressway north of Tokyo.

The driver, 76, didn't respond to patrol cars signaling him to pull over and brushed the corner of one oncoming vehicle as he drove at about 60 miles per hour, said a spokesman for the Gunma prefectural (state) highway police on condition of anonymity.

The driver told police he had been driving for 40 years but was taking the freeway for the first time, to visit relatives. He said he made a u-turn after missing his turnoff and didn't initially realize his mistake or notice the police cars following him.

He was fined $75.

Stolen Pompeii Frescoes Recovered

POMPEII, Italy - Police have recovered two Roman frescoes stolen from the ancient city of Pompeii last week, officials said Tuesday. There were no immediate arrests.

The frescoes were located Monday night in an abandoned building less than half a mile from the ruins. They were reportedly lightly damaged.

Police said the frescoes were found covered in protective packaging, perhaps destined for shipment out of the country.

One of the frescoes is a round depiction of Cupid, the winged god of love, with a diameter of 13 inches. The second is a 17-inch-by-19-inch depiction of a rooster pecking at a pomegranate.

"Even if they are not too damaged, the thieves destroyed the murals around them to get what they wanted," said Raffaella Leveque, spokeswoman for Pompeii's archaeological authority.

The pieces of art had been stolen from the ground floor of an "insula," a Roman apartment building, and were made just a few decades before the city was buried under layers of ash when Mount Vesuvius erupted in A.D. 79.

A Little Taste Of Prison

BANGKOK, Thailand - Thailand's Cabinet ministers got a taste of prison life Tuesday when they sat down for a lunch prepared by convicts being trained with new job skills.

The lunch, all Thai cuisine, was the first catered for the Cabinet by prisoners, said Corrections Department Director-General Kwanchai Wassuwas. It was cooked by female inmates from Bangkok's Lard Yao prison, he said.

"It's very delicious," Prime Minister Thaksin Shinawatra said during the meal, which was served after the weekly Cabinet meeting. Usually, different restaurants in Bangkok supply lunch each week.

Thailand's prisons are grossly overcrowded, and the Corrections Department has promoted various activities in the past year to ease tensions and try to rehabilitate prisoners.

In addition to occupational training, it has staged beauty contests and soccer tournaments and established a choir, which has performed outside prison for the general public.

Rhino's Dogs Are Barking

BUFFALO, N.Y. - A 2-ton Indian rhinoceros at the Buffalo Zoo will be treading a little more lightly with the donation of a few truckloads of topsoil to cushion his aching feet.

The rare rhino's foot problems have forced the zoo to halt attempts at breeding him until he is able to endure pressure on his hind feet.

Dr. Frank Ridgley, a zoo veterinarian, said the problem is common with rhinos in U.S. and European zoos. The rocky soil Henry is now exposed to has caused cracks in his skin, which widen with each step. He is being treated with oral antibiotics and daily footbaths.

In their natural habitat, rhinos spend a lot of time wallowing in mud and water, and walk on much softer soil.

The zoo also is working with a tire maker that has offered to produce custom-made Kevlar boots for Henry.

Zoo officials have been seeking high-quality topsoil to counter the erosion of the limestone beds on which the zoo was built. Amherst agreed to donate 60 cubic yards from the town's compost facility, worth about $5,300.

Zoo President Donna Fernandez said the zoo would try to raise private funds to buy some more.

Heinz To Introduce Blue Ketchup

PITTSBURGH - Blue cheese, blueberries and chicken cordon bleu, but blue ketchup?

The H.J. Heinz Co., which has sold the condiment in red, green, purple, pink, orange and teal, is adding blue to its palette of crazy-colored ketchup. The Pittsburgh company unveiled Heinz EZ Squirt "Stellar Blue" on Monday, just in time for spring and summer - hot seasons for condiments.

Based on the success of the other colors, the food giant expects the new color to provide a boost to all ketchup sales, not just the oddly tinted ones, said Heinz spokesman Robin Teets.

Since Heinz introduced its first shade, "Blastin' Green," in October 2000, the company sold more than 25 million bottles of colored ketchup. Last year, Heinz controlled 60 percent of the American ketchup market, an all-time high for the company, Teets said.

Every time the company introduces a color, its share of the market bumps up a bit, Teets said.

"It's the time of year when overall sales goes up. There's a nice bump in volume from EZ Squirt products, but we tend to have a halo over ketchup, overall," Teets said.

Drugged Mzantsi(South Africa) - A People In The Grip And Clutches Of A Drug Pandemic: What's To Be Done? Culture And Us

Not All Of Us See politics in the same way... But we all Undergo The same Experiences...

According to Jose Marti:"We must state categorically that there is no salvation for our people unless we turn our backs on all the models that charlatans of all types have tried to sell us for twenty years. There is no salvation outside of this rejection. There is no development separate from a rupture of this kind. All those new intellectual giants who are emerging from their slumber -- awakened by the dizzying rise of billions of men in rags, aghast at the threat of this hunger-driven multitude weighing on their digestion -- are beginning to rework their speeches/[writings].

"Far it being for me to ridicule the patient efforts of honest intellectuals who, because they have eyes to see, are discovering the terrible consequences of the devastation imposed on us by so-called specialists in the development of the Third World. My fear is to see the fruits of so much energy co-opted by Prosperos of all kinds who -- with a wave of their magic wand -- spirit us to world of slavery dressed up in today's "fashions.

"My fear is justified even more by the fact that the educated petty bourgeoisie of Africa - if not the entire world -- is not prepared to give up its privileges, either because of intellectual laziness or simply because it has tasted the Western way of life. Because of these petty bourgeois forget that all genuine political struggle requires rigorous, theoretical debate, and they refuse to rise to the intellectual effort of conceiving new concepts equal to the murderous struggle that lies ahead of us. Passive and pathetic consumers, they wallow in terminology Fetishized by The West, Just As They Wallow In Western Whiskey And Champagne In Shady-Looking Lounges.

"Ever since the concepts of negritude and African Personality, now showing their age, the search for ideas that are genuinely new produced by the brains of our "great" intellectuals is in vain. Our vocabulary and our ideas come from elsewhere. Our professors, engineers, and economists are content to simply add color -- from often the only things they brought back with them from European/American universities that have produced them are their degrees and their velvety adjectives and superlatives!(Sankara is confirming what Andre Gunder Frank was saying above).Sankara:

"It is both necessary and urgent that our trained personnel and those who work with the pen learn that there is no such thing as neutral writing. In these stormy times we cannot give today's and yesterday's enemies monopoly over "thought," "imagination," and "creativity."Before it too late -- and it is already late -- this elite, these men of Africa and of the Third World, must come home to themselves, that is, to their societies and to the miseries we inherited.

They must understand that the battle for ideology that serves the needs of the disinherited masses is not in vain. but they must understand, too, that they can only become credible on an international level by being genuinely creative -- by "Portraying A Faithful Image Of Their People, An Image Conducive to Carrying Out Fundamental Change In Political And social Conditions And To Wrenching Our Countries From Foreign Domination And Exploitation, Which Leave Us No Other Perspective Than bankruptcy.

"The citation above is an introduction to the piece I am posting below. The Drugs are decimating our people and everything, worse than Aids, with the same powerful destructive effect/affect, and devastating impact on us: especially in the community I am about to talk about.

Before I do, I want to preface my comments on the article above by saying: we might try very hard to play the game of the Ostrich burying its head in the sand, but, we are even more exposed by doing that, and cannot even see and deal with the dangers facing us, today.

In the Township of Orlando, the oldest one of all the various Soweto Townships that expand from it; drugs are wreaking havoc, and piercing at the core of the community more than many here on all the Social Media are willing to accede or acknowledge. I have written extensively here on Facebook about the drug pandemic that has assailed us, and promised will come back with new information and update about the Nyaope that is wiping us out. Seriously.

I will post the earlier post on Maponya again, at the end of this piece.I have posted the fact that the ANC government has acknowledged that ''drug abuse'' poses an even bigger threat to its young people'(the children and youth of Mzantsi), than the HIV/AIDS pandemic. I think both are huge, and are really furiously gnawing away at our people and us. Many diss and deride these users, but many of us today, who have to live with and amongst our African people in Orlando and witnessing first hand what is going down-We feel/see it; what is happening to us on a much grander and macabre state that many really nor care to know-it is what is our reality...

When I write such articles, the supposed-elite-African-intelligentsia and other such opportunists, keep quite, and do not even do anything. Some pick up ideas and apply themselves and their newly found ideas in trying to do something for the people. Be as it may, this present article is present a report, news that is not reported, and stories from the Township of Orlando, that are swirling throughout the denizens of Orlando, but are tangentially known by the rest of our edumacated elite-and they are national in scope.

Orlando is but just a window into the whole cesspool and morass that is our decrepit existence, That is why I will not stop writing about these sad chapters in our lives, but, am writing them for posterity, and to preserve them as historical record for our children and people/Nation.There are two things I would like to take a look at, and lastly try and interrogate the whole social miasma as it is shaped, to date.We have a rat-rodent problem which is being exacerbated by the corrugated iron shacks patched/made of boards, plastics and anything to build a dwelling for our people.

Orlando is very well-known to have legions of this structures in their yards, and these have created this formidable rat invasion and other creatures, which causes that the people say things about their presence bordering on conspiracy theories. Nonetheless, it is a fact that these rats and rodents are biting the people's doors; also, they are biting the children sleeping and creating a host of other ailments we have not even begun to deal with.

The most recent posts I have dropped on all sorts of Social Media, are geared towards us beginning to write about our real realities and maybe many of us will begin to learn and see something that we had not even thought about, before. Creating a literature from the grassroots reporting as I am about to do, is one way to go, of the many that can used. I am going to make sure that this disaster that the people of Orlando are facing, as I am onto this article, is exposed and written about as clearly, and as much in a raw way as I can conjure and write it down.

I have waxed political and theoretical enough on the most recent two pieces I have posted here on Facebook and elsewhere. Now, I want to delve into the environment I live and exist in and to make an attempt to caricature its reality and effects/affects on us. What is happening as I am onto this article in our Township is unconscionable. There is no moral justification as to what is happening to our youth, and the adult(children, baby population). This is a very serious thing happening to us here, and I think I will talk about it now.Here in Orlando we are facing a deadly and serious drug epidemic.

Drugs are so rife, that we have several drug potentates planted throughout the whole Township and in many contemporary youth social events. Pretext of an event is a carte blanche operation for the drug dealers and distributors. Drugs have a unique and not so sophisticated way the travel and are disseminated in our community here in the Kasi(Township). It would at one time help us to deal with this problem better if this were to followed up and exposed.Here in Orlando, we customarily call areas within Our Township of Orlando, by the first numbers of their street, in one part of Orlando, and others have their names for a general group of areas, but being Orlando too.

So, in the areas of the street known as '20, we have chaos that is replicated throughout Soweto and the whole hinterland of South Africa with similar ghettoes and decrepit life-style existences. These are the throw-back and creation of Apartheid, and from these enclaves, we find similar scenes and realities that I am describing below in Orlando.This is news that is not news in the traditionally White owned media and nor in the dialogue going on inside the country. What it is I am saying this is not important for no reporters ever take time to sit down and look at, participate in and try their darnest to bring this situation into light.

We as the grown up residents and former students who were involved in the 1970 Student Revolution, are looking at our and within our own Townships, and what we are seeing is some kind of carnage: Drugs destroying and decimating our famous, friends, society and the African race. This is what is happening now as I am onto this article.One of the general terms given to this devastating drug, it is called "Nyaope," a generic name for a killer drug that has left our youth being spooks and walking skeletons right in front of us. What a mess we are in as a people today in Orlando.. So sad to see... Heartbreaking and discouraging.

What we have to live with everyday is spiritually.- soulfully taxing and seriously soul and spirit bruising. I think one has to see it to grasp my meaning. I am going to try and get some pictures, very soon. Optics do serve a relevant tool and technique in what we have to try and contain and at the moment, are at loss what we can or should do.Nyaope Hell Holes And Meat GrindersAs I had said above, in the area of the Streets known as 20(this includes street No. 19) in Orlando, there is this wheelchair drug dealer thug called Nkesi.

He runs a drug-dealing den in plain sight with tight security to go. His hirelings are destitute and jobless and lacking in education or dropouts, both girls and boys, who, even go to his hovel(home if one may say so) which is a terrible and a hell for drug-addicted girl teenagers, who would do anything for a fix. That is where we get to see many victims come out/thrown from or these hell holes with HIV/AIDS, and other STDs that are still dismally afflicting and affecting our people, children, youth and elderly-either dead or sickly.

When you see these youth and grown ups pining and crazily craving the drug, they steal water taps, fenced gates, copper wires from the electric poles and houses-ones heart and soul/spirit sinks to its lowest ebb. They have a favorite on their menu, which is these new Plasma TV Screen. It is said if they do not sell them, they imbibe the white powder they find therein, which is fatally destructive, but it is their high pick on the menu of drugs. They also sell them to earn money to go back and buy the Nyaope.

Known as 'Grootie'(Big Brother) or Ketsi, on his wheelchair is loathed by many of the this youth, and those brave enough, tell all about him. They talk of his crude and cruel ways of their treatment by him and many others of his foot-soldiers who run the errands of buying drugs from HIV/Aids patients-they are also enforcers. Some of these people afflicted with the HIV/AIDS disease, collect their rations of the ARV's from different hospitals and outlets, using various means, by moving from one place to the other-collecting the pills.

So that, In the end, they sell these pills to the dug-lords foot-soldiers, who in turn sell them to the distributors and providers of this Nyaope for a fee. This is the cycle, of how this whole operation gets done.Many people are affected in various dire and unknown ways by these burgeoning drugs. There are crews that operate in our midst in the trade of dealing or distributing drugs and raking in millions of Rands in their operations.

The houses that they use for such illicit and illegal operations, are houses that the family in that house might have disappeared/wiped out, or is complicit in the trade, and there is no order, and some like Ketsi, have security tight operations that everyone knows, and have installed within their dens, the State Of The Art Cameras driven by some new and sophisticated technology.

So that, as these mini-factories churn out corpses and walking spooks/zombies, we have to live with the scourge-and all the time feeling downright helpless.The police are on the top of the pecking totem pole and order The bribes they get makes them look askance, and their drug-lords/partners in crime and genocide, are never arrested, but if they do, sit in front with the cop driving, and are out in a matter of hours.

Bodies of young girls are found strewn in the street corners or the middle of the road, having been ravaged and no one investigates, and yet the locals know who did it-but the locals state that they are bodies thrown out of these caverns. They dare not talk, for even the innocent ones have been killed for no other reason than that they were innocent and were never involved in anything of the kind of operations/drug-dealing or drug use, I have briefly discussed above.

If one were to see these kids and elderly, they have this menacing/angry look, and the people say they are even more wild and daring/bold when they have not smoked their stuff/Nyaope. So that, this leads them to carrying out dastardly deeds, murder and what it takes just to get a fix. They are jaded, ashen and very 'blackened' and gaunt-looking-Ghost-like, and never ever wash.

The local lore has it that they no more beat them, once they catch them stealing, they simply pour water over them, and they end up howling like wild creatures with all the water coming down on them. Some say that this water acts like acid on them. There is some kernel of truth in that, but as to the validity of the claim, the jury is still out on that one.The behavior of these strung-up youth is appalling and galling. It is also sad to see a wasted life moving like an ogre or zombie out of whack and stone to the max.

This something to behold and it is devastating and crushing on some of our souls, mind and bodies. Our kids talk like they are having speech deformities, and they are bent and very wild-eyed-looking and are always on the prowl in search of another theft or robberies-to get another fix/high. Hooded thugs prowl the hood and rape and abduct and rob women as they are headed off to work in the wee hours of the mornings.

So many rapes, so many muggings-men are also mugged, and most times shot; assaults, murders and all kids of undeclared war on the our polity is causing a costly blow we will take many centuries to recover from, that I come here onto the Facebook collective and ask that something be done before it's too late, of which it is beginning to look like it is very late.As a temporary tangent, we have drug dealing in the coughing medicines sold in the Pharmacies or Chemist that are laced with cocaine, and now they are selling all over the place for around R15.00-are the hot item that is proliferating in our midst.

The name of that guy is Adcock Ingram, and the cough syrup is manufactured by the famous 'Broncleer' according to the presenter, and whose name, the journalist or hostess of the show is Nkepile Mabuse and the name of the show is "Check Point" on e-TV it was aired on 02. 06. 15 at 10:00 pm-and that is where I got this bit of information from. People are now addicted to this concoction, and it is marketed by a person, whose company name appears of the cough drops for infants, and only our Ancestors know what they are putting in this old cures for babies.

This is another issue I will be talking a bit about whenever I complete my researches.In the manufactories spotting and dotting the landscape, some of these youth are telling of how they have to wear latex gloves when making this Nyaope or some obscure drug mix-because it is hot and burns the skin; they even volunteer information as to the fact that they make it inside some tires, for they do not destruct just as quickly and for whatever reason. There's a whole of deadly mixes of rat poison, Dagga, some disinfectant, ARV's Mandrax tablets and other natural salts/chemicals and an assortment of everything to produce this drug or drugs of the same ilk.

As I am onto this piece, one of my friends just walked in complaining about the lack of electricity for the pas so many hours. He says that rumors has it that a copper cable has been stolen, just as I am writing about this issue here on this piece. We are under an attack and deluge of thefts perpetrated by these Nyaope users, and that is why some houses and sections of Orlando do not have electricity now-this was not due to power-load sharing. People even steal water, that is in those locations that have these water meters.

People are not working, and cannot afford pre-paid electricity, and metered water, which have been outsourced to foreign corporation/countries, and they are fleecing us so badly and leave us always in the cold and literally dry.Both youthful but shredded and emaciated looks of youth, girls and boys are dropping out of schools in droves and headed into these drug dens, they are emaciated, blackened, dry-deadened physiques, drooling and zombie-like spook-looking walking dead.

The poor once youthful great looking girls are smoking anything, have HIV/AIDS, sleep around with anyone and thoroughly abused sexually, sickly and bony looking with eyes drooping out of their sockets, very thin-looking, breasts sagging and wasted and gaunt faces; hair falling off, this for us is watching death incalculable and very dumbing and numbing-Daily.Then there's Madambi. The character too lives around the 20s Street, and he too is into high tech, eking money out of the inhabitants, and he too is destroying the youth for he has created a well organized enterprise and has his henchmen, but he is not bigger than Nektsi.

Funked-Up Society - A People On The Precipe Of The Dark Hole

This brings us to the "Hell House". So dubbed because in it everything and anything happens or takes place. This is where the meat-grinder modus operandi is churning out corpses, Murders are routine and there is a general sense of intimidation that is the norm and credo. As for the Cops, they are nowhere to be seen, or the same thing happens when they arrest the Drug-lords, the thugs are always let go and they bribe their way out.

Bribery is another scourge that is endemic amongst law-enforcement people in south Africa-it has become a sort of a culture of laissez fair and a carte balance spirit that has prevailed for some decades now. In the Noordgesig Colored Township, there are Old ladies who sell what they call "Space Cookies". These are bought and eaten by the students of Noordgesig High School, and this leaves the kids High And smoked out/High.



Thus the persisting problem of school drop-out rate as I have just touched upon above.At night, the poor working women, early risers and leavers headed to work in the dark, are susceptible to lurking murderers and rapist as they walk alone towards the required transportation to work. There were patrols by local guys, but this has been sparse and sporadic at best, and the issues of being paid take precedence before anything else, let alone local people's safety. So, we have less patrols in the ungodly hours of the morning.

Some Youth in our Block have been encouraged to do this till 6 am. This is not always the case, but the area is better now, for now.The other underlying but not oft looked important issue, is the fact that we as a people have already beed deadened and conditioned by Apartheid that we are having a hard time coming out of that Stalag and mental Gulag. Of course we have long been in the Concentration Camps and prisons of Apartheid functioning and operating like the aforementioned Stalag and Gulag meatgiinders and psyche-hospitals that have contributed immensely to our present state of being and existence of our African of South African people.

We now have events called Marikana, a ruse and guise to distribute the drugs and consume liquor and carry on sex by its organizers, that in the end, these place end up with armies of these drug dealers: foot soldiers-who advertise and sell their drugs in these events, the illicit drugs and all forms of booze, and this ends up being an orgy of drugged-out and highly intoxicated youth, which is a setting for other things beyond the pale.Ketsi's children and other such-like people, have their children going to the best schools in the land.

This is unconscionable. This Ketsi self-styled potentate drive all sorts of cars(sits on a wheelchair, mind you) and has many girlfriends... go figure. We have no power to fight against these interlopers, and destroyers of our youth and communities. There needs to be something the people of goodwill here in Mzantsi can do. This is going on as I speak and is not abating.It is a fact that the drugs have decimated families, youth and elderly people. It has left destruction and ruin in the townships throughout Soweto, but in this case, I will focus on Orlando.

Drugs like Cocaine and Mandrax pills started proliferating in the Township around the early eighties and has now become a pandemic throughout different communities of Africans, Coloreds and Whites. In Orlando East(Soweto), the inhabitants have been watching with dread and fear as their youth became zombies, sick, and died from this drug-which, when imbibed, makes its victims froth at the mouth and tear-up incessantly, walking unsteadily zombie-like walk and creates an ever increasing crave, leading to all sorts of crime that has this drug-besieged Township of Orlando teetering on the brink of lunacy and genocide.

This is a problem which has been thus far so utterly ignored that the residents of Orlando, rallied by the members of the CPF(Community Police Forum which was formed by the local Orlando station police force) along with and run by the local residents-who patrol and try to keep crime at a low minimum. On the second Major Saturday of August 2013, a coalition of local Orlando Beds For Sale Port Elizabeth residents, Their CPF Team and several policemen in their cars descended on the drug dens dotting the Township in each and every street.

Recapping and reposting of the Maponya Saga [I penned many moons ago]:

What The Citizens Of Orlando Have Attempted To Do Fighting Drugs In Their communities"Community Action and and Exhumation of Crime/Drugs" - Drug Ground Zero Soweto and Durban and Cape Town....

As the article above aptly shows we take note on this part of the article that the same sound of singing, became protestations when the coalition I had described above descended onto to the drug houses and dens within Orlando. A very disturbing picture began to emerge.The Jo'burg Metro police gave permission to the marchers, and provided the police force, and it was explained to the marchers that the agreement, and permission to approach the drug dealers was given. With placards and a huge number of people began advancing to the 'known' Drug dens, and those who sold from street corners or shop stoops.

The people went to the houses, containers used as phone phones booths and other illicit activities including the selling of "Nyaope"; The mob advised the police that the Zimbabweans, Nigerians, Pakistanis, and some Coloreds[along with locals] should be arrested and searched for drugs. In some houses in Orlando, they found drugs on the bodies of Old grannies, who were used as carriers. Heading the large group was Councilor Matlaka(Councilor of Dube), along with 8(eight) police cars, about 15 policemen ant eh CPF patrollers were about 30, and the rest of the group consisted of a large number of undisclosed members of the local resident.

Five young boys were arrested and were found to have drugs on their persons. Some of these dealers were women who had come from the rural areas and were very secretive as to who their suppliers were. Others were resistant to the mob but caved in when they saw the mob's menacing bearing and intent.In the part of the Township called "Roma"[which is still Orlando], two houses were searched and drug paraphernalia was found; they also found a lot of stolen IDs and Marijuana in bags, along with credit cards and guns.

Some of this stuff was found under the beds in some of these houses, or carelessly strewn all over the dirty and unkempt houses.In another areas of Orlando around a store called "Goodluck" several houses were without owners, and all sorts of evil and illicit and sordid activities have been taken place in plain sight and nobody could anything about it... In one "Pink" Big House, the occupants tried to run away, but were apprehended had had on their person both 'Nyaope' and Marijuana and two guns.

Maponya - (The Nyaope Potentate whose fiefdom is Orlando)

In the area around the Grounds and Tennis Courts(Known Generally as 'Escort'(Still in Orlando) is the headquarters of the Nyaope sales. Hoards of youth and well-off middle class Africans, along with cops(who are in the pay of this guy), who has in his employ, his grandmother, and siblings-the Police and local ANC honchos. One of the 'carriers' who serves his customers on his behalf, was found with six plastics bags and she was in a close to comatose state...

The locals who were in the march, alerted the police that Maponya's grandmother had all the drugs hidden in her body, underneath her clothes. She was very rude and arrogant and dared the police to touch her. She was arrested and searched on arrival in that the police station On seeing what's happening, Maponya attempted to escape, put on a disguise but the citizens saw to it that he was apprehended.

When he was brought into the parked police cars, he insisted that he should sit in the front with the police driver. All the time he was wagging his finger and berating the police, and none responded to his charade. From this incident it was apparent that the Police Commander and his side-kicks(police grunts) were in the pay of this lilliputian drug potentate.The community, who have been seeing the police and other people of note come to buy or get paid by him over a period of time, lost their cool.

They threatened to riot and demanded that Maponya be put in the back of the squad car with all other arrestees. Eventually he was put in the back with all other small-time drug dealers, and he was clearly miffed about this and he carried on his protestations.What got him off the hook, was the directive the police said that he could not be arrested if he did not have any drugs on him. Those who worked for him refused to snitch or rat out on him. They all denied having received or brought this stuff from him-and the junkies were intimidated into denying that he supplied or sold them the "Nyaope"...

This technicality, helped set him free and he was released without being charged.The crowd moved to an area in Orlando too, called 'Paramount,' and they went into the ramshackle shacks filling up the yards of most houses in Orlando, and in them they found and routed drug dens , prostitution harems, and 3 people were arrested there-considered to be the main bosses. As far as one can tell, "Nyaope" is sold in each and every street in Orlando.

The denizens of Orlando were disgruntled and felt betrayed, because everyone knew who(Maponya) was really distributing drugs wholesale in the Township, and he walked scot-free, due to a flimsy technicality in the law so that, in the end, the people wanted the Minister of the Police, Mrs. Raphiyega and the government to become involved.

The people finally decided to call a meeting in a week of two, to report back to the community these events, and have decided to take the case to the Provincial government and they want the Premier to take this case over.

Most of those residents who partook in the raid, have to go around the Township armed"Drug And Chemical Warfare On the People Of Mzantsi"Below I will link an article which no longer talks about "Nyaope, but "Whoonga" which is a potent and highly addictive mixture of Marijuana, heroin, and HIV Medications.

The same with "Nyaope" and other concoctions, which also include the life-saving pills for HIV-Aids, and literally makes waste of the users and death, sickness, crime, homicide, rape and so forth have spiked. This is a crisis, and it needs to be addressed aggressively, or we stand to loose not only generations, but a whole nation of people high on home-made designer drugs which are decimating communities throughout South Africa with unequaled impunity.



Until the day we Africans of Mzantsi stop thinking of and for our individual selves only, until they day we Africans of Mzantsi say enough is enough; and, until we come to our senses and go and see for ourselves what I am talking about or everyone is writing about what these drugs are doing to us, our people, relatives and communities[Nation], we will forever be in our cocoons and do nothing, and we are clearly facing something more dangerous than HIV AIDs(Which is still battering and wiping the core of our communities), we will in the end taken-snuffed by the genocide we are now facing.

There is more to the story as to how these drugs came into the country, and I will be writing an article tracing the origins of this scourge and addiction.We are really much better than this, lest we forget that.... We can all 'wax political' to our egos content.. But this, is not going away, instead, it is threatening our very existence as the indigenous of the country of South Africa... We are in the clutches of a very dangerous and deadly grip of a drug epidemic whose likes has never been seen before in our country.

We need to begin to help ourselves and come to these communities and route the drugs and dealers consistently and brutally, or it is they, as we are seeing, who will run our Townships(they already are) or either its us who will have the finally say, and control and run our townships and communities... Whither Mzantsi....The article above was made possible by the people of Orlando I talked to. All I did was cobble up all the interviews, and these are what I formed into the narrative above.

This is seriously Grassroots news and Grassroots intelligence, which is out there for all who wish to report on the events and issues that are taking place amongst our own people. The newspaper will not put it in the way that Malcolm explained above as I cited him. We have to begin to write our own news and stories, and talk to the people Face-To-Face, and can then afterwards post it on Facebook. Our people have the information as to what's going down in the Township... We just need to get out there, be amongst them, and write these stories, and show them what we have written, in order to get even more gruesome accounts of the lives of our African People Of Mzantsi, today,here on the Viral soup.

Travel Tips :: Top Ten Tourist Destinations in Spain

Spain is the second most visited country in Europe and is made up of 17 regions which include the Balearic Islands and the Canary Islands.

The population of Spain is around forty seven million residents and its capital Madrid hosts around three million three hundred thousand of the forty seven million total, six million if you include the metropolitan areas surrounding the capital.

Despite this and being the capital of Spain, Madrid is not the most visited city. That coveted title goes to Barcelona which is located in the north east region of Spain and marks the start of the Costa Brava, a section of coastline that reaches up from Barcelona to the French border over the Pyrenees mountain range.

Below is a list of the 'Top Ten Tourist Destinations for Spain' or you can visit Euro Traveler for more detailed travel information on Holiday Destinations in Europe.

Barcelona, located on the east coast in the north of Spain Madrid, the capital of Spain and a beautiful city. But located right in the centre of Spain and away from the sandy beaches which are a big lure for the sun seeking fraternity that like to visit Spain Seville, located in Andalusia just to the north of the famous port of Cadiz. This is one of the sunniest and highly valued regions of Spain both for holiday makers and expats Costa Del Sol, sits on the south coast of Spain and is centered around Malaga, very popular with the sun lovers and beach dwellers Costa Blanca, which resides on the east coast of Spain and is serviced by Alicante airport. Barcelona beaches, the beaches that sit near to the favorite city of Barcelona a perfect location for holiday destinations in Spain where you want to mix a little bit of sun worshiping with a cultural experience only a city can offer. Costa Brava, previously mentioned, resides in the north east and connects with France, the most popular destination in Europe and literally translated Costa Brava means rugged coast. So it is a little more scenic than some of its cousins. The Balearic Islands are primarily recognised as Majorca, Minorca and Ibiza and sit in the Mediterranean just off the Catalan coast line. The Canary Islands are also a part of Spain and are as such considered to be Spanish holiday options; the best known probably being Tenerife.So there you have it, the top ten tourist destinations for Spain, but you can find out more about the other holiday destinations for Europe plus more detailed information on Spain via the links provided.



http://www.articlebiz.com/article/1051339652-1-top-ten-tourist-destinations-in-spain/

Pistorius family 'shaken' by leak of crime scene photos

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Fitch Rates Jefferson's Ferry, NY Rev Bonds 'BBB+'; Outlook Stable