Marcel, a 29 year-old Paraguayan male, received a 33-day sentence for larceny and was mandatorily detained by Immigration and Customs Enforcement (ICE). Min Soo, a 30 year-old woman from South Korea, who, like Marcel, was mandatorily detained without bond for the offense of larceny. Because law on immigration consequences [1
that flow from a conviction for larceny2
is in flux, in certain states Marcel and Min Soo may have a strong challenge to their classification as mandatory detainees. However, since being categorized as “mandatorily detainable”, Marcel and Min Soo were ineligible for bond adjudication before an immigration judge [2
Since all mandatory detainees receive a risk classification assessment (RCA), Marcel and Minn Soo were scored and categorized as low to medium risk, which suggests that were they not mandatorily detained by statute, and they should not have been detained at all.
In this article, I examine mandatory detention through the lens of the ICE’s risk classification assessment (RCA). The RCA assigns risk scores to those in custody, which are used for detention decisions and security assignments in detention. Even those mandatorily detainable receive an RCA score, revealing detailed information about their criminal backgrounds on the one hand and equities on the other. These factors are calculated to reveal the detainees’ risk to public safety and flight. The findings demonstrate that mandatory detainees, such as Marcel and Minn Soo, are not generally high risk, and are no more dangerous than any other group of immigrants in ICE custody who are eligible for bond or released outright, and, thus, like them, mandatory detainees should be eligible for bond, or released outright [3
]. Additional findings demonstrate that ICE mandatorily detains those who clearly should not be mandatorily detained under the statutes as well as those who arguably do not fall under an enumerated offense [1
The article also examines mandatory detention through the lens of structural violence4
to account for the physical and psychological harm that mandatory detention inflicts on noncitizens, overwhelmingly of color. Structural violence is a term ascribed to Johan Galtung in 1969, which refers to an indirect “avoidable impairment of fundamental human needs” ([5
], p. 167). It affects those at the bottom rungs of society, and can be attributed to racism, xenophobia, and nationalism. Noncitizens who find themselves in immigration custody are at this bottom rung.
As applied to law, scholars refer to legal violence to take stock of the violent effects of immigration law on noncitizens [6
]. Whereas “legal violence” scholarship focuses on the effects of law, this article examines the violence embedded in legal decisions themselves, which creates an unsafe space for noncitizens, and removes options for relief. Violence is compounded by the system of crimmigration law that denies bond and legitimately removes procedural safeguards.
Mandatory detention is a violence that is exerted indirectly through 8 U.S.C.1226, the process for detaining noncitizens in removal proceedings. As discussed below, structural violence is embedded in immigration law, particularly the government’s plenary power to detain. Harm is created for the noncitizen along a lengthy process of denying procedural and substantive justice. The violence can be tracked to immigration law’s harshly asymmetrical power dynamic, which diminishes the human dignity of noncitizens, as well as to court decisions that “bait and switch” a criminal process for a civil process. Much of the structural violence that diminishes the quality of life for the subset of noncitizens with prior crimes is concealed by assertions of legitimacy and due process, as real world decisions actually occur in private halls and behind concrete prison walls.
The concept of benevolent violence similarly describes inequality with reference to unjust social, political, and economic systems [7
]. This article recognizes neoliberalism as coinciding chronologically with crimmigration (early 1980s), and informing the development of individualizing and criminalizing strategies of social control, as applied to immigration law, with reference to public law and criminal law more generally. As detention capacity increased during the 1980s, private prisons like the Corrections Corporation of America started detaining immigrants for profit. The profit motive for private firms led to interest groups applying pressure to Congress for more detention facilities. Indeed, from 1985 to 1988, immigration detention bed space nearly tripled, from 6000 beds to 16,000 beds, and exploded during the 1990s with the construction and renovation of new facilities, which provided capacity for immigration authorities to detain thousands of more removable noncitizens.
By the early 2000s, ICE’s capacity to detain helped to turn the rationale for detaining to depend less on individualized determinations of dangerousness and more on categorical determinations of aggravated felonies, crimes involving moral turpitude, and legislatively imposed bed quotas, which encourage mass detention. Contrary to the narrative, neither public safety nor assuring appearances at hearings are at risk, but, rather, the rule of law itself. Rule of law norms, such as as proportionality, publicity and accountability, are trampled by mandatory detention practices.
After discussing mandatory detention within the historical context of immigration law, the article will document mandatory detention as an unnecessarily harsh deprivation of individual liberty. Although the loss of liberty applies individually to noncitizens, decisions are categorical and thus take no account of individual characteristics, such as a noncitizen’s legal status, risk score or likelihood of relief. They profile noncitizens that are overwhelmingly of color and impugn human dignity by detaining without bond.
For purposes of operationalizing the concept, I examine structural violence in terms of a system of law that allows and overlooks unnecessary and unjustified deprivations of liberty according to ICE’s own standards and guidelines. Although all noncitizens in mandatory detention have been deprived of liberty without due process of law, I will highlight the subset of those who might not have been detained had they not been subjected to a categorical determination to mandatory detention under 236c. This category of individuals includes those who receive low and medium risk scores, and whose criminal offense is not necessarily mandatorily detainable under 8 U.S.C. 1226. It highlights the injustice of detaining those who are not a high risk and those who were wrongly detained with a flagrant disregard for fundamental rights to be free. The violence is indirect and embedded in the legal process. It exists in the detention of those with prior crimes, particularly those who, even ICE, says it would not mandatorily detain. The structural violence here is located in the lack of accountability for a wrongful detention. It is ostensibly invisible for lack of bond and review authority (aside from a Joseph hearing5
). In particular, the article points to a system of immigration law that allows ICE to detain on the basis of a secretive RCA algorithm, including even those it ambiguously and erroneously categorizes as mandatorily detainable. The article recommends ameliorating this structural violence by abolishing mandatory detention.
3. The Derivation of Structural Violence in Immigration Law
Structural violence originates in late 19th century legislation that established an immigration system, criminal in function, but civil in form. The system received legitimacy from a set of highly deferential Court opinions, starting with Chae Chan Ping
and Fong Yue Ting
that discerned plenary powers in the political branches and then deferred to them. In 1896, the same Court that decided Plessy v Ferguson
pinned plenary powers onto decisions to detain immigrants (of color) as part of the civil process [16
]. Unlike Plessy
, overturned in 1954, these cases were not overturned, and thus toxic racism and bigotry continues to poison the process of detention and removal [16
]. The racist ideology that gave rise to Chinese exclusion continues to deprive individuals of their liberty through Demore v Kim
], which cited Wong Wing
as justification for mandatory detention [18
]. Although, in recent years, courts in several circuits have sided with detained immigrants who are subjected to mandatory detention for prolonged periods of time, such decisions remain at the margins of a regime deeply steeped in structural violence [3
The Court envisioned plenary powers as a way for the political branches to expeditiously dispatch with imagined (and real) enemies of the state with impunity.7
Turned inward, the courts extended plenary powers to decisions about whom to detain as part of the removal process, hence ensuring immigration detention would also be off the table in terms of substantive review. Congress had the final say over whom to hold and remove and delegated this plenary power to the executive, where it now resides with the Secretary of Homeland Security.
The oppression of detained immigrants was born of this dynamic. Judicial precedent legitimized state power over immigrants and policies treating noncitizens differently than citizens, and punishing immigrants under the auspices of civil law [19
]. Thus, political branches could imprison without punishing, and detain without attracting the scrutiny reserved for those in criminal prisons. Legally speaking, mandatory detainees are civil detainees, not criminals, and their detention—opposed to incarceration—is not punishment. Additionally, political branches could categorically detain individuals on substantive grounds that would violate constitutional safeguards in non-immigration contexts. As an outcome, provisions also apply retroactively, and with no statute of limitations.
4. Mandatory Detention
The mandatory detention provision applies at the outset of the removal processes on two groups of noncitizens: (1) those convicted of certain prior crimes; and (2) those placed into non-judicial removal proceedings (i.e., removed administratively by DHS, rather than after a full hearing before an immigration judge). Additionally, at the end of removal processes, noncitizens are often placed in mandatory detention for 90 days or longer after an immigration judge issues a formal removal order.8
In 1996, in the Illegal Immigration Reform and Responsibility Act (IIRIRA), Congress mandated that immigration enforcement authorities “shall take into custody” individuals pending removal who have committed a broad category of crimes, “when the alien is released” from criminal custody [22
This mandatory detention provision, U.S.C. § 1226(c), contributes greatly to over-incarceration. It provides for the automatic no-bond detention of persons convicted of certain enumerated offenses of varying degrees of seriousness—ranging all the way from minor offenses like shoplifting or possession of small quantities of drugs to major crimes of violence. It defines some of those crimes as “aggravated felonies” and “crimes involving moral turpitude”, terms of art that impose severe immigration consequences but that include minor, nonviolent offenses10
including simple possession of small quantities of drugs [25
Since most offenses are state crimes, ICE must ensure that the state offense matches federal definitions before subjecting a noncitizen to mandatory detention. The classification of crimes that may qualify as “aggravated felonies” or “crimes involving moral turpitude” is an evolving area of law. Because of variations in interpretation among circuits, and the way a state law is articulated and applied, in each state very similar offenses are potentially subject to very different immigration consequences. There are no public data reporting the number of individuals mandatorily detained for criminal convictions, but this number is potentially significant given the large number that DHS removes following a criminal conviction ([26
], p. 13, Table 2).11
In a series of recent decisions, the Supreme Court reaffirmed that whether a particular conviction constitutes an “aggravated felony” or a “crime involving moral turpitude” is determined by whether there is a categorical “match” between the elements of the state offense as defined by statute and the “generic” definition of that offense or the way it is commonly understood.12
Using this analysis, the Fourth Circuit has found that many common Maryland offenses are not properly classified as “aggravated felonies” [32
]. When the state offense is broader than the generic federal definition of the crime, such offenses do not qualify as aggravated felonies or as crimes involving moral turpitude.
As several former INS officials argued in an amicus brief in Demore v Kim
, absolutist rulemaking authority under 1226(c) hinders fair and efficient efforts at detention [33
]. Since those mandatorily detained hold fewer rights than nearly all those similarly situated elsewhere in public law, mandatory detention amounts to a wholesale rejection of a balanced approach (with applicable legal norms) to detention and release determinations that transports it outside public law norms [34
]. Unlike in the criminal justice system, for example, mandatory detention decisions are made without a neutral magistrate, individualized determination with regard to risk of flight or to public safety, clear and convincing evidence in support of a decision to deny release, or any record to explain why release has been denied ([1
], p. 9).
Crimmigration scholars have emphatically demonstrated that immigration detention functions as punishment [36
]; detention conditions are punitive and demeaning [37
]; detention is “indistinguishable from jails” [40
], and in fact, frequently takes place in local jails that contract with ICE; and the system was deliberately designed to be punitive [41
]. It has also been documented that state of the art surveillance technologies have the capacity to constrain the liberty of those who are not detained but are instead placed on ankle bracelets or similar monitoring devices [14
]. In addition to extensively documenting the criminal function of immigration detention [44
], scholars have also pointed to the failure of courts to explain how this form of detention could possibly not amount to punishment [45
]. This highlights the structural violence embedded in mandatory detention specifically, as well as in punitive immigration enforcement laws more generally, redirecting attention back to the history of violence and exclusion that the immigration system manifests, beginning with the Chinese exclusion cases.
The dynamic behind mandatory detention seems irresistible to political leaders across the political spectrum, which helps explain why President Obama’s ostensibly liberal democratic administration has detained individuals at unprecedented levels. Over two million immigrants have been detained since 2009, about 400,000 individuals annually and about 34,000 on any given day. In fiscal year 2013, U.S. Immigration and Customs Enforcement (ICE) detained nearly 441,000 noncitizens pending deportation proceedings ([46
], p. 5)—the largest number of individuals passing through any U.S. incarceration system, federal or state [47
]. On any given day, 34,000 individuals were detained, leading Dora Schriro (2009), assistant to former DHS Secretary Janet Napolitano, to observe that ICE has the “largest detention…program in the country” [37
Even as bipartisan support grows for reductions in criminal incarceration13
including pretrial detention,14
no similar support exists to reduce immigration detention, so as a result, ICE’s detention rates remain stubbornly high. In fiscal year 2013, ICE detained nearly 80 percent of its arrestees [50
], while criminal law scholars criticize jurisdictions in the U.S. pretrial detention system that unnecessarily detains 38 to 42 percent of defendants [51
]. Although detention numbers dropped in fiscal year 2014 to 425,478, with 33,227 individuals on a given day, the immigration system’s starting point continues to be widespread over-detention [38
], even more pronounced than criminal pretrial over-detention [52
At almost every turn, ICE interprets mandatory detention provisions as authorizing it to absolutely detain anybody
whose conviction even arguably falls under the enumerated offenses, even where the law is evolving, unclear or contradictory, and regardless of how long their detention lasts or is likely to last [1
]. As detention numbers suggest, it, instead, is simply resolving almost every legal or factual ambiguity in favor of the government,15
keeping the challenger in mandatory detention unless he or she had essentially already prevailed in their immigration case.
DHS has publicly interpreted the provision mandating “custody” to require detention, i.e., physical incarceration, as a matter of DHS policy [54
Some advocates and elected officials have argued that “custody” encompasses alternative measures such as electronic monitoring, based on U.S. criminal law precedents [56
]. DHS has also interpreted the provision “when the alien is released” to require detention at any time after release from criminal custody—even years later—rather than only at the time of actual release [58
]. That interpretation has been heavily litigated in federal courts, with some division among circuits as to whether ICE should take custody immediately following a criminal conviction or whether it may do so many years—sometimes decades—after the person has been released from incarceration17
With mandatory detention, hundreds of thousands of immigrants who ordinarily would have qualified for release on bond or other conditions now end up in immigration detention for the duration of their immigration proceedings. Because of the complexity of immigration cases that involve charges based on prior state crimes, these proceedings routinely take up to or longer than a year to resolve [1
]. Additionally, the complexity of reconciling state criminal offenses with the INA adds to the challenge of making individual determinations effectively, and leads to a systematic bias in favor of detention. These structural realities of mandatory detention inflict severe harm on immigrants, their families, and their communities, at nearly every turn.
5. ICE’s Risk Classification Assessment (RCA)
ICE’s “Risk Classification Assessment” (RCA) initiative, from the outset, was designed to advance Administration initiatives to reduce and better tailor its use of detention, and increase use of alternatives to detention (ATD), as part of its broader effort to make immigration detention “truly civil” [62
RCA is nonetheless administered to all those in custody, even those mandatorily detainable, and documents the irony of a risk based system that over-detains due to the absolutist categories of mandatory detention, thus ignoring the purpose of a risk tool to reduce and better tailor its use of detention.
ICE’s RCA is a computerized algorithm that ICE uses in its book-in process to assess two primary factors: Risk to public safety, and risk of flight from proceedings [64
ICE officers collect criminal and immigration history throu gh records checks, and family and personal data, such as local ties, family history, residency history, or substance abuse, through an intake interview ([65
], p. 6). The algorithm then recommends detention or release, the amount of bail (if any), and detention or supervision levels.20
ICE has never released its methodology nor business rules.
ICE conducts the RCA on all noncitizens that enter its custody, including those apprehended by other DHS agencies or components. The only significant exception, as of late 2012, was that ICE officers were not required to complete an RCA for any alien for whom detention is mandatory and whose departure or removal will likely occur within five days.21
After an RCA recommendation is made, an ICE supervisor issues a final determination as to custody status.
Properly used, the RCA can tailor detention to individuals who are high risk. The RCA assesses two factors—risk to public safety, and risk of flight from immigration court proceedings—and produces an assessment of high, medium or low for each risk factor. RCA does so based on extensive data collected in the RCA process [66
particularly regarding special vulnerabilities, if any exist ([66
], pp. 12–13).23
Data on public safety, which comprises the salient variables for dangerousness, is likely more reliable than data on flight risk. ICE’s public safety assessment is based mainly on “static” (i.e., previously-existing) information in criminal databases, which provide criminal history (i.e., records of all criminal charges, dispositions and sentences),24
open wants or warrants, supervision history (such as bond breaches or supervision violations), and disciplinary infractions [67
The one exception is ICE’s evaluation of gang affiliations (also termed “Security Threat Group” status), based on information gathered by an ICE officer during the intake interview ([69
], pp. 7–8; [70
], p. 8, footnote 7). From “static” criminal history, the RCA also assesses whether mandatory detention for a prior crime under INA § 236(c) applies, which trumps the RCA’s detention recommendation.26
The flight risk assessment, conversely, is based mainly on “dynamic” information, collected by an officer through ICE’s intake interview. This includes local ties (such as a U.S. citizen spouse or child), family history, residency history, substance abuse history, work authorization, legal representation, and other factors (exceptions include immigration violation history, history of absconding, and pending USCIS benefit applications) [65
]. Some criminal researchers have found static information more predictive than dynamic information [72
Moreover, noncitizen individuals might plausibly under-report some of these factors—particularly the presence of family members, due to fear of their deportation.
Based on an overall weighing of these two factors, the RCA then produces one of four recommendations to: (1) detain without bond; (2) detain but with eligibility for bond; (3) defer the decision to the ICE supervisor; or (4) release. Mandatory detention results in an RCA recommendation to detain without bond.28
For those in mandatory detention, the RCA produces one of five security level recommendations: (1) low security; (2) low-medium security; (3) medium security; (4) medium high security; and (5) high security.
12. ICE Assesses Its Detainees as Primarily Posing Flight Risk, Which Alternatives to Detention Can Mitigate at Lower Cost
More broadly, if ICE’s nationwide factual assessments are similar to those in Baltimore (as ICE’s detention outcomes were), strong arguments exist that ICE could increase its use of lower-cost alternatives to detention (ATD). RCA assessed the vast majority of the Baltimore arrestees (not just those in expedited removal) as flight risks, but not serious public safety risks. Put another way, ICE primarily used detention to ensure that immigrants appeared for removal processes, rather than to prevent immigrants from committing crimes.
ICE’s Baltimore results contradict ICE’s publicly stated rationales for detention, which have long focused on public safety. For example, ICE Director Sarah Saldaña recently stated that ICE has “focused our detention and removal resources on public safety and national security threats to ensure we are doing everything we can to keep America safe” [89
ICE’s detention outcomes in Baltimore also contravene one of the purposes of RCA—to encourage alternatives to detention for those not dangerous ([47
], p. 20). Indeed, ICE’s recent budget request reiterates ICE’s goal to “[c]ontinue to prioritize aliens for ATD who present the highest risk of flight” ([90
], p. 66). Flight risk is a valid purpose for detention, and detention prevents flight at a 100 percent rate.53
However, if those released will not threaten public safety, the question is whether ICE can use alternative mechanisms to achieve nearly the same results with far lower financial, human and social costs.
ICE’s alternative to detention program, called the Intensive Supervision Appearance Program (“ISAP”), has demonstrated remarkably high success in ensuring appearance at court hearings. From fiscal years 2011 to 2013, 95 percent of participants in ISAP’s “full-service” program, which involves supervision, technology monitoring (either electronic GPS tracking or phone reporting), periodic visits and case management, appeared at their scheduled removal hearings ([50
], pp. 30–31).54
Concurrently, DHS’ Inspector General reported that in FY 2012, only 4.9 percent of ISAP participants absconded, and 4 percent were arrested by another law enforcement agency ([66
], p. 6). These success rates echo earlier findings regarding alternatives to detention.55
The Obama Administration is attempting to increase its use of ATD. ICE requested $122 million for alternatives in fiscal year 2016—an increase over past years, albeit still much less than its $2.4 billion request for detention [90
If alternatives to detention were implemented more broadly—and in conjunction with reductions in detention—there would be significant cost savings [55
A U.S. GAO report found the average daily cost of the ISAP program to be $10.55 per day, compared to the $159/day estimated cost of detention ([50
], p. 18). One independent report found that ICE could save $1.4 billion if it could place every detained noncitizen not convicted of a serious crime into ATD (leaving aside the bed minimum requirement) [40
]. Immigrant advocates have also argued that ATDs impose far less social burdens on immigrants and their families ([26
], p. 46).
Mandatory detention is a form of structural violence. It is an extraordinary deprivation of liberty that provides neither bond nor relief. Such deprivation is reinforced by a system of law that treats noncitizens worse than citizens and provides weak civil law safeguards against immense enforcement power. The violence is made even harsher by ICE’s erroneous calls for mandatory detention that go enforced without review. Such harm is generally limited to those without counsel and of color.
RCA provides DHS with the means for tailoring detention to those who score as a high risk to public safety. With the increasing use of alternatives to detention for flight risk, there is no reason to imprison individuals who score a high flight risk. With RCA and ATD, a properly tuned algorithm can help ICE to detain those who score a high risk to public safety, and no one else. In other words, with RCA, there is no need for mandatory detention.
With RCA data, I have been able to examine the consistency of RCA mandatory detention decisions to find the deprivation of liberty process to be surprisingly ad-hoc and arbitrary. Further, RCA sheds light on the actual dangerousness of mandatory detainees. The presumption of dangerousness is unrelated to the actual dangerousness of individuals who are mandatorily detained. First mandatory detainees are no more dangerous, or risky, that any other immigrant in immigration custody. Second, the RCA findings reveal that individuals may sometimes mistakenly be classified as being subject to mandatory detention [1
These findings also reinforce the argument increasingly made in circuit courts as they order bond hearings for those mandatorily detained for long periods of time. In Rodriguez v Robbins, the 9th Circuit said the government must bear the brunt of establishing flight risk and dangerousness to protect immigrants from erroneous deprivations of liberty. More recently Lora v Shanahan in 2015 in the 2nd Circuit created a bright line rule that requires the government to give individuals a bond hearing before an immigration judge within six months of the start of detention. According to the court, the government must meet the burden of showing “clear and convincing evidence of those individuals are flight risk or dangerous to the community”.
Since the RCA shows many individuals in mandatory detention are not risky, perhaps mandatory detention’s days are numbered.
RCA is likely to be the tool with which to assess dangerousness for mandatory detainees within six months of detention. I recommend ICE re-examine the RCA algorithm to ensure that individuals in mandatory detention indeed should be there by law. The six-month rule from Lora and Rodrigues, notwithstanding, it also seems imperative for ICE to reconcile the administration of mandatory detention with actual dangerousness prior to a mandatory bond hearing at six months. A good way to do this would be for Congress to remove mandatory detention from the books and replace it with discretionary detention—based on RCA—for all individuals in ICE custody.
As much as mandatory detention is also a tool of institutional violence: a creature of plenary power, with gross asymmetries of power between the state and the individual, it will likely be left to the political process—not the courts—to mandate shifts in policy as part of comprehensive immigration reform.
With such findings, it is also reasonable to suggest that since ICE is now in possession of technologies that can assure immigrants appear in court and for removal, and can tailor physical detention to individuals who really are dangerous, some courts have begun to claim that mandatory detention is unnecessarily punitive.