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.
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.
