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Mandatory Immigration Detention for U.S. Crime Mark Noferi 2013

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12/19/2013

MANDATORY IMMIGRATION DETENTION FOR U.S. CRIMES:
THE NONCITIZEN PRESUMPTION OF DANGEROUSNESS
Mark Noferi1
(forthcoming chapter in Immigration Detention, Risk and Human Rights,
Springer: 2014)
ABSTRACT
Today in the United States, mandatory immigration detention imposes
extraordinary deprivations of liberty following ordinary crimes—if the person
convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the
first detailed examination of mandatory detention during deportation proceedings
for U.S. crimes. I argue that mandatory immigration detention functionally
operates on a “noncitizen presumption” of dangerousness. Mandatory detention
incarcerates noncitizens despite technological advances that nearly negate the
risk of flight, with that risk increasingly seen as little different regarding
noncitizens, at least those treated with dignity. Moreover, this “noncitizen
presumption” of danger contravenes empirical evidence, and diverges from
parallel criminal pretrial detention reforms. Rather, it rests on stereotypes of
dangerous, recidivist “criminal aliens”—even more salient to preventive
detention determinations, given a noncitizen’s inherently speculative past. I
preliminarily offer two theories for the “noncitizen presumption,” both reflecting
expressive characteristics of immigration detention—government
overcompensation for public “blaming the gatekeeper,” and complementarily, a
social construct of noncitizens as invitees, derived from property law.

1

INTRODUCTION ...................................................................................................2

2 OVERVIEW: MANDATORY PRE-HEARING IMMIGRATION DETENTION OF
NONCITIZENS FOR U.S. CRIMES ................................................................................5
2.1 RATIONALES .................................................................................................6
2.2 CURRENT U.S. PRE-HEARING MANDATORY DETENTION LAWS ...................6
2.3 HISTORICAL DEVELOPMENT OF U.S. MANDATORY DETENTION LAWS .........9
2.4 PARALLEL DEVELOPMENT OF U.S. PRETRIAL CRIMINAL JUSTICE REFORMS11

1

Visiting Associate Fellow, Center for Migration Studies, New York. I thank for
feedback, guidance, and support Kristina Campbell, Stacy Caplow, Stewart Chang, Alina Das,
Maryellen Fullerton, Maria João Guia, César Cuauhtémoc García Hernández, Geoffrey Heeren,
Robert Koulish, Frances Kreimer, Juliet Stumpf, Yolanda Vasquez, the participants in the 2012
First Crimmigration Control Conference at the Universidade de Coimbra, Portugal, and the
participants in the 2013 Emerging Immigration Law Scholars Conference at UC-Irvine, California.
I also thank Setenay Akdag, Elizabeth Komar, and Rebecca McBride for excellent research
assistance.

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MANDATORY DETENTION: THE “NONCITIZEN PRESUMPTION” OF DANGER IN
PRACTICE ................................................................................................................13
3

3.1 FLIGHT RISK ...............................................................................................14
3.2 PUBLIC DANGER .........................................................................................17
3.3 STEREOTYPE AND BIAS SUPPORTING THE NONCITIZEN PRESUMPTION .......19
4

EXAMINING MANDATORY DETENTION’S ANIMATING RATIONALES .................20
4.1 REJECTING SUB ROSA CRIMINAL RATIONALES ............................................21
4.1.1

DETERRENCE…………………………………………………….. 21

4.1.2

PUNISHMENT……………………………………………………. 22

4.2 EXPRESSIVE CHARACTERISTICS OF MANDATORY DETENTION ....................23
4.2.1

BLAMING THE GATEKEEPER ...........................................................25

4.2.2 A PROPERTY LAW ANALOGY: DETENTION OF NONCITIZENS AS
INVITEES .....................................................................................................27
5

CONCLUSION.....................................................................................................28

REFERENCES ...........................................................................................................30
CASES CITED ...........................................................................................................41
STATUTES AND LEGISLATIVE MATERIALS CITED ....................................................41

1 INTRODUCTION
Today in the United States, if a noncitizen resident commits a crime, and
later comes to immigration authorities’ attention, (s)he will likely never freely set
foot on American soil again. (S)he will likely be “mandatorily detained.” In
other words, (s)he will be incarcerated for months or years, without even an
individualized bail hearing, until deportation (unless (s)he defeats those
proceedings while incarcerated without an appointed lawyer).
Mandatory detention applies, even for minor offenses committed long ago,
no matter how long the noncitizen has lived in America; or whether the noncitizen
has lawful status (a.k.a. a “green card”), family, property, or a job; or indeed,
whether any evidence of actual dangerousness exists. Mandatory detention
applied, for example, to Melida Ruiz, a 52-year-old New Jersey grandmother who
had lived in America for thirty years, supported her mother with Alzheimer’s and
her U.S. citizen children and grandchildren, and had one nine-year-old
misdemeanor drug possession offense for which she never served jail time.
(Noferi and Koulish 2013) It applied to Bertha Mejia, a 53-year old California
grandmother who stole groceries. (Mass 2013) It applied to Garfield Gayle, a 53year old Brooklyn carpenter and grandfather who was convicted of possessing
marijuana in 1995, seventeen years before U.S. Immigration and Customs

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Enforcement (“ICE”) authorities came to his house. (Tan 2012) All were jailed
for months or years during their deportation proceedings.
In short, mandatory detention potentially imposes extraordinary
deprivations of liberty on persons following ordinary crimes—if the person
convicted is not a U.S. citizen. The U.S. imposed 38,000 mandatory detentions in
fiscal year 2011, estimates show. (Noferi 2012, p. 67 & n. 13) This article
examines this disparate treatment.
Here, I present the first detailed analysis of U.S. mandatory immigration
detention on criminal grounds, and its rationales and practices. My findings build
on other scholars’ questionings of immigration law’s disproportionality, while
more specifically examining detention practices (and comparing them to pretrial
criminal detention, which employs similar rationales of preventing flight risk or
danger).2
Here too, I isolate this particular context of pre-hearing mandatory
immigration detention (i.e. pending deportation proceedings), for post-entry
criminal activity (i.e. a U.S. crime). Doing so allows fuller examination of several
heretofore-unexplored topics.3 For one, I focus on detention for criminal grounds,
rather than other forms of pre-hearing detention,4 or mandatory detention.5
Additionally, I explore the categorical nature of immigration mandatory

2

For example, Mary Fan argued that “criminal punishment and its costs should not turn
just on the status of being an alien,” but in the context of criticizing U.S. laws that criminalize
unlawful entry, rather than detention pending immigration proceedings. (Fan 2013, p. 45)
Jennifer Chacon, in analyzing deportation, noted “questions about why the criminal law is deemed
to provide sufficient punishment for citizens, but not for non-citizens,” but did not isolate
detention. (Chacon 2007, p. 1887)
3
Geoffrey Heeren analyzed U.S. mandatory immigration detention generally, whereas
here I isolate pre-hearing, post-entry mandatory detention on criminal grounds. (Heeren 2010)
4
DHS also discretionarily detains noncitizens in deportation proceedings. (8 U.S.C. §
1226(a)) For example, Anil Kalhan primarily surveyed immigration detention conditions (calling
them “quasi-punitive”), without focusing on particular detention laws or mandatory detention.
(Kalhan 2010)
5
Mandatory detention also exists post-deportation order, and for “arriving aliens” at the
border. (Heeren 2010, pp. 609-13; Noferi 2012, p. 83 & n. 108) Post-deportation order detention
seeks the same goals as pre-removal order, but after adjudication of deportation, before execution
of removal. (Legomsky 1999, p. 534) An individual is mandatorily detained for ninety days after
the removal order and, if not removed during those ninety days, may be released under
supervision. (INA § 241(a)(1)-(3), 8 USC.§ 1231(a)(1)-(3)) Additionally, “arriving aliens”—
noncitizens arriving to the United States, including returning LPRs and asylum seekers—are
mandatorily detained if deemed inadmissible, without any immigration judge review. (8 USC.
§1225(b)(1)(B)(iii)(IV), (b)(2)(A)) They may be paroled into the United States, however. (8
USC. §1182(d)(5)) (authorizing humanitarian parole). Also, such “arriving aliens” from Mexico
or Canada may be mandatory detained during “expedited removal,” a fast-track procedure that
allows immigration officers to issue removal orders with no hearing or review. (8 USC.
§§1225(b)(2)(c), 1229a)

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detention, which does not consider noncitizens as individuals.6 And notably, I
explore constructions of migrants who enter and then commit a crime, distinct
from scholars’ prior constructions of the unlawfully entering (the stereotypical
“illegal aliens”). (Fan 2013, p. 7; Schuck 1984, p. 6) Mandatory detention on
criminal grounds applies to all noncitizens—lawful or not—which distinguishes
the “noncitizen presumption” I describe here from prior scholars’ work.
First, I argue that pre-hearing mandatory detention on criminal grounds
today functionally operates on a “noncitizen presumption” of dangerousness, as
noted. The U.S. effectively proceeds as if a noncitizen whom has committed a
crime remains especially dangerous beyond the period of conviction, even if
supervised, compared to a U.S. citizen. Mandatory detention does not quite
categorically incarcerate all noncitizens with criminal convictions during their
deportation proceedings. But I argue that a “noncitizen presumption” of
dangerousness exists, based on the breadth of criminal activity encompassed, the
absence of narrowing mechanisms for relief, and the empirical evidence I collect
below.
I contrast this as well with U.S. criminal pretrial detention practices. Here,
I argue that even though the U.S. criminal justice system over-detains relative to
actual danger (despite recent reforms), mandatory immigration detention overdetains even more so, because it categorically ensnares the less dangerous—the
older, those with only one criminal charge, and those charged with fraud and
public order criminal offenses. (Baradaran & McIntyre, 2012)
I arrive at the “noncitizen presumption” by examining the two rationales
for pre-hearing detention—flight risk and danger—and ruling out the first as
legitimate for mandatory detention. Little justification remains today for
mandatory incarceration to prevent flight. Technological advances in alternatives
to detention, such as tracking bracelets and GPS, prevent flight nearly as well as
detention. U.S. immigration and criminal authorities more routinely cooperate to
identify and track noncitizens. More fundamentally, research preliminarily
indicates that greater access to justice and less detention may encourage high
compliance with proceedings—even, I argue, regarding noncitizens in
immigration proceedings, traditionally presumed with higher incentives to “flee
into the interior.” (Noferi 2014; Tyler 2006; Sunshine & Tyler, 2003)
Given this, the remaining rationale is danger. U.S. immigration officials
proffer this rationale, instead of flight risk, in their public statements and policies
describing the danger to public safety from “recidivist criminal aliens.” (Morton
2013) Essentially, the U.S. does not trust noncitizens with convictions to remain
at large, even if supervised and attending proceedings. This presumption flies in
the face of empirical evidence, showing that noncitizens are less likely to engage
6

César Cuauhtémoc García Hernández argues that immigration detention constitutes
punishment in light of its legislative history, without isolating mandatory detention provisions.
(Hernández 2013)

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in criminal activity, and less likely to recidivate even if they do. Thus, I argue,
the “noncitizen presumption” stems rather from well-familiar stereotypes of the
dangerous “criminal alien” than empirical evidence. Moreover, in a preventive
detention context like pre-hearing immigration detention, the inherently
speculative nature of noncitizens’ lives before entering the U.S. accentuates the
government’s tendency to err towards detention.
Finally, although I mainly seek here to establish the “noncitizen
presumption,” I also preliminarily explore its animating rationales.7 I posit that
the animating rationales are primarily expressive, not empirical—designed to send
messages to the U.S. populace of active, competent Government protection from
dangerous criminal aliens. I explore two potentially complementary theories here.
One I call “blaming the gatekeeper.” I argue the public assigns blame to
the Government for failing its gatekeeping function and proximately causing a
noncitizen’s later crime, with the Government then overcompensating to show
protection via mandatory detention laws. Second, I argue that the U.S. socially
constructs noncitizens as “invitees,” per a property law analogy, which helps
explain the zero tolerance for noncitizen criminality inherent to mandatory
immigration detention. Both these theories help explain troubling disconnects
between disproportionate immigration detention practices and individualized,
rights-based norms. I also largely reject two potential sub rosa rationales
borrowed from criminal law, namely deterrence and punishment.
Most likely, given the expressive characteristics of mandatory detention
laws, a change to mandatory detention will require a change to discourse
regarding noncitizens with convictions. I explore this possibility last.
2 OVERVIEW: MANDATORY PRE-HEARING
NONCITIZENS FOR U.S. CRIMES

IMMIGRATION

DETENTION

OF

I examine here post-entry, pre-hearing mandatory detention —i.e.
detention of someone apprehended inside the U.S., pending a determination on
their deportation.8 In this section, I first, set out its facial rationales; second,
provide an overview of the U.S. mandatory detention system; third, set out its
historical development through law; and finally, provide a parallel overview of
reforms to criminal pretrial detention, since passage of mandatory immigration
detention laws.

7

I seek to explore these arguments more fully in future research.
Immigration and Nationality Act (“INA”) § 236(c); 8 USC § 1226(c). My
categorization of “post-entry” detention follows Daniel Kanstroom’s categorization of “post-entry
social control” immigration laws, distinct from “extended border control” laws. (Kanstroom 2000,
pp. 1899-1914; Cox 2008, p. 350)
8

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2.1 Rationales
On its face, pre-hearing immigration detention is designed to prevent the
putative deportee from committing either of two social ills during deportation
proceedings. The first is flight from proceedings (a.k.a. abscondment). The
second is crime. (Demore v. Kim 2003, pp. 517-21; Legomsky 2009, p. 536)
Mandatory detention seeks those same two goals via a categorical, rather than
individualized, determination. (Legomsky 1999, p. 535) Here, the categorization
is based on prior commission of a crime.9
Importantly, immigration detention, since it is legally civil, not criminal, is
entirely preventive and should not be punishment. (Zadvydas v. Davis 2001, p.
682) That said, immigration detention and pretrial criminal detention, before
conviction, are both legally civil. (Legomsky 1999, p. 536 & n. 28) Indeed, both
have the same two goals of preventing flight and crime.
Additionally, civil detention and criminal incarceration, whether pretrial or
post-conviction, both legitimately share the common mechanism of
incapacitation, i.e. separation from society.10 Because of this overlap, with
incapacitation in turn effecting complete deprivation of liberty, scholars have
noted the functional resemblance between civil immigration detention and
criminal incarceration. (Stumpf 2006, p. 391 & n. 130; Kanstroom 2000, p.
1895)11
2.2 Current U.S. Pre-Hearing Mandatory Detention Laws
Since 1996, 8 USC § 1226(c) has governed U.S. mandatory detention of
noncitizens in deportation proceedings pending their hearing. Under that statute,
the U.S. government “shall take into custody” any noncitizen with prior criminal
offense(s) that fit into certain immigration law categories, all of which would also
make him or her deportable or inadmissible.12 (Seipp and Feal, 2010, pp. 5-6) If
DHS determines a crime fits such a category, it detains the noncitizen without bail
during immigration proceedings, without any individualized hearing to assess
flight risk or danger.

9

The U.S. also can mandatorily detain an individual that the U.S. Attorney General
certifies as a national security threat. INA § 236A; 8 USC. § 1226A. The U.S. has never
exercised this capability. (Cooper Blum 2012, p. 691)
10
“[W]hile incapacitation is a goal common to both the criminal and civil systems of
confinement, retribution and general deterrence are reserved for the criminal system alone.”
(Kansas v. Hendricks 1997, Kennedy, J., concurring; Demleitner 2003, p. 1637)
11
But see Hernández 2014 (arguing that immigration detention is punishment because
legislative intent was punitive).
12
Federal immigration law primarily uses categories of crimes to trigger detention and
deportation, rather than cross-referencing specific state or local criminal statutes. (Das 2011, p.
1672)

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These immigration law categories encompass a broad range of criminal
activity, much of it minor. One is mandatorily detained if one has been convicted
of (a) an “aggravated felony,” (b) two “crimes involving moral turpitude”
(“CIMTs”) at any time after U.S. admission, (c) one crime involving moral
turpitude with a term of imprisonment of more than one year, (d) a controlled
substance offense, or (e) a firearm offense.13 Attempted possession of drugs,
simple assault, subway turnstile jumping, petty theft or shoplifting, or disorderly
persons offenses have been held to qualify for mandatory immigration detention.
(Noferi 2012, pp. 89-94) Offenses may qualify even if no or little criminal jail
time was served. Offenses may also qualify even if the criminal system absolved
one of liability, via a dismissal, deferred adjudication, revoked sentence,
expungement, nullification, pardon, or juvenile adjudication. (Noferi 2012, pp.
94-95)
Offenses qualify as well even if committed long ago. There is no statute
of limitations on detention and deportation for old convictions. Indeed, U.S.
immigration law changes were retroactive, turning pre-1996 convictions into
grounds for detention and deportation where none previously existed. (Stumpf
2011, p. 1797) Detention and deportation for old convictions appears fairly
common. For example, a 2013 study found that regarding detainer requests ICE
issues to local governments for a noncitizen with a conviction, about half involve
convictions over five years old, with almost a quarter involving convictions over
10 years old, and four percent (about 4,000 over 16 months) involving convictions
over 20 years old.14 (TRAC 2013b)
Regarding mandatory detainees specifically, along these lines, a
significant portion are long-time U.S. residents, at least those who challenge
deportation. For example, a 2013 expert report studied a sample of mandatory
pre-hearing detainees who were detained six months or longer, and found that 75
percent had lived in the U.S. five years or longer, 55 percent 10 years or longer,
and 26 percent 20 years or longer. (Tan, 2013, p. 7-8)
Mandatory detention applies to all noncitizens, and does not distinguish
between those with lawful immigration status (such as a U.S. green card) and
those without it. (Grussendorf, 2013, p.6) About 20 percent of those generally in
13

(8 USC. § 1226(c)(1)(A)-(D); Noferi 2013, p. 90)
Once DHS makes a mandatory detention determination, the noncitizen has a high burden
to challenge it—essentially, to show the government has no non-frivolous argument supporting the
mandatory detention categorization. Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999)
(noncitizen must show the government is “substantially unlikely” to establish the mandatory
detention charge(s) at the removal hearing). The analysis of whether a crime fits the mandatory
detention categories is incredibly complicated, and can include different modes of statutory
analysis (“categorical” or “modified categorical” analysis), in different judicial circuits, as well as
facts from the initial crime. (Noferi 2012, pp. 89-96) Indeed, mandatory detention analysis
spurred U.S. Supreme Court Justice Samuel Alito to say that “nothing is ever simple with
immigration law.” (Padilla v. Kentucky 2010, p. 1490)
14
The study reported that some convictions were over 40 years old. (TRAC 2013b)

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immigration deportation proceedings appear to be lawful permanent residents,15
whom more likely have jobs and families, such as the poignant anecdotes in the
Introduction.
Given all this, mandatory detention does not quite categorically
encompass all noncitizens with criminal convictions pending their deportation
proceedings. Some criminal convictions do not qualify one for mandatory
detention. Data does not exist on the relative percentage of convictions that do
qualify, among noncitizens.16 But given the breadth of criminal activity covered,
and the absence of avenues for relief, I argue mandatory detention accurately
creates a “noncitizen presumption” of pre-hearing incarceration in deportation
proceedings, where none exists in pretrial criminal proceedings.17
Existing data implies that mandatory detainees are a significant minority
of the noncitizens placed into immigration proceedings every year. From 2005 to
2010, 9 percent of New York ICE arrestees were mandatorily detained prehearing for crimes, which extrapolated nationwide would be over 38,000
mandatory detentions in fiscal year 2011 (of 429,000 the U.S. detained).18 (NYU
2012, p. 10; Noferi 2012, p. 67 & n. 13) Or, from 2001 to 2011, 15.2 percent of
the nearly 2.3 million noncitizens placed into proceedings—over 346,000—were
charged as deportable on criminal grounds (with some percentage of those
mandatorily detained). (TRAC, 2011)19
Mandatory detainees also comprise a disproportionately high percentage
of the long-term detention population. A 2009 government report stated that twothirds of detainees then were “mandatory,” although it is unclear what percentage
were detained pre-hearing for U.S. crimes. (Schriro 2009, p. 6; Kalhan 2010, p.
46) This high percentage may be explained by the length of mandatory detention,
15

Human Rights Watch found that approximately 20 percent of those deported on
criminal grounds between 1997 and 2007 were lawful permanent residents. (Human Rights
Watch 2009, p. 4) Similarly, a NYU study of ICE arrestees in New York from 2005 to 2010
found that 21.2 percent of ICE arrestees in New York were lawful permanent residents. (NYU
2012, p. 7)
16
Human Rights Watch found that 72 percent of those deported between 1997 and 2007
on criminal grounds were deported for nonviolent offenses, with the number rising to 78 percent
when considering lawful permanent residents. (Human Rights Watch 2009, p. 4) It is unclear
how many of these individuals were mandatorily detained.
17
For these reasons, several U.S. states and localities now refuse to hand over noncitizens
with minor criminal records to federal immigration authorities. These jurisdictions include
California, New York City, Chicago, Los Angeles, Newark, New Orleans, and Washington D.C.
(N.Y. Times 2013)
18
If 9 percent does not seem high, consider that New York City criminal courts in 2010
denied bail to only 1 percent of defendants in cases continuing past arraignment. (Section 2.4)
19
Recent data since 2011 is similar. For example, TRAC Immigration, a Syracuse
University research project studying public immigration data, found that in fiscal year 2013 to
date, approximately 14.3 percent of those placed in proceedings were charged as deportable on
criminal grounds, with slightly over 4 percent charged with an “aggravated felony” (which would
automatically make one mandatorily detainable). (TRAC 2013)

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for those who challenge deportation. A 2013 expert report found that of
mandatory pre-hearing detainees who were detained six months or longer, the
length of detention was about 14 months. (Long 2013, p. B-1)20
More generally, mandatory detention has undeniably contributed to the
U.S. immigration detention explosion, although its exact contribution is unclear.
In 1995, before the 1996 laws passed, the U.S. detained 7,500 on any one day.
(Schriro 2009, p. 2) Now, the U.S. Department of Homeland Security (DHS)
detains 34,000 on any one day and 429,000 throughout the year, at a cost of $2
billion per year. (U.S. DHS 2012, p. 4-5; Nat’l Immigration Forum 2013, p.1)
2.3 Historical Development of U.S. Mandatory Detention Laws
U.S. mandatory detention laws developed in three legislative enactments
between 1988 and 1996. Initially, legislators focused on the danger posed by
noncitizens with convictions, and then shifted their focus to encompass flight risk
as well. I briefly summarize this history here.
Historically, mandatory detention was not the norm prior to 1988.
Although the U.S. possessed broad discretionary power to detain noncitizens
pending their deportation on criminal or national security grounds, noncitizens
(including “criminal aliens”) could be afforded “liberal relief” from detention
based on individual circumstances. (Miller 2003, p. 622)21 Detention appears to
generally have been for short periods, and not on the large scale implemented
today. (Kreimer 2012, p. 1486) In 1979 and 1980, however, the U.S. detained
tens of thousands of Cubans arriving to the U.S.. In 1982, U.S. President Ronald
Reagan then by executive order mandatorily detained thousands of Haitians
arriving by boat. (Hernandez 2013, p. 15; Silverman 2010, p. 9)
The U.S. then, in 1988, first codified in statute pre-hearing mandatory
immigration detention. Congress mandated detention pending deportation of
noncitizens whom had committed murder, illicit firearms trafficking, and drug
trafficking, in the Anti-Drug Abuse Act, part of the U.S. then-“war on drugs.”22
(Hernandez 2013, p. 22) Congress did so by creating an immigration law
category of crimes—i.e. “aggravated felonies” (which included those three)—and

20

The expert report was filed in California federal litigation challenging the failure of
mandatory pre-hearing detention to provide individual bond hearings. One-third of these
detainees (33 percent) won their cases, showing that challenging deportation was not a lost cause.
Another 11 percent had cases still pending at the time of the study. (Ibid., p. B-4)
21
Allowable considerations included age, health, elapsed time of detention, and
likelihood of resuming or engaging in deportable behavior.
22
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7343, 102 Stat. 4181, 4470
(codified as amended at 8 USC. § 1252(a)(2) (2006)).

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mandating the then-INS to take custody of any noncitizen convicted of these
crimes after the criminal sentence.23
At this time, legislators’ stated rationale for mandatory detention was the
dangerousness of those particular noncitizens. For example, New York Senator
Alfonse D’Amato described aggravated felons as “a particularly dangerous class”
and commended provisions that “put aggravated alien felons in detention.”
(Hernandez 2013, p. 22)
Subsequently, in 1990, the U.S. Congress expanded the “aggravated
felony” category to include more drug crimes, thus expanding mandatory
detention.24 The rationale remained danger. For example, in 1989, Congress
heard evidence that criminal aliens committed more crimes before being
deported.25 Or, then-President George H.W. Bush stated after the 1990 Act that
these noncitizens “jeopardize[d] the safety and well-being of every American
resident.” (Bush 1990)
Then, between 1990 and 1996, legislators developed evidence focusing on
criminal aliens’ flight from proceedings, and recommending detention to prevent
abscondment (and thus, future crimes). For example, a 1995 U.S. Senate report
stated, “[c]riminal aliens are a serious and growing threat to public safety,” and
“[p]roblems of undetained criminal aliens who fail to appear or who abscond…
would be lessened if the INS detained more criminal aliens.” (U.S. Senate 1995,
p.1) The report found that over 20% of deportable “criminal aliens” failed to
appear for removal hearings, and called this a “high rate of no-shows.” (Ibid., p.
32) This followed a 1994 Department of Justice report, which similarly found
that 21% of noncitizens failed to show for proceedings in 1992. (Department of
Justice 1994, p. 5)
The 1995 Senate report did not estimate the numbers of crimes committed
by noncitizens relative to citizens. Rather, it explicitly (if not empirically)
connected unlawful immigration status to criminality. “[T]heir illegal situation
conveys an ‘outlaw’ status, often leading them into the shadowy realms of
criminal lifestyles.” (Ibid., p. 5) Subsequently, Senator Orrin Hatch stated
(without statistics), “Frankly, a lot of our criminality in this country today
happens to be coming from criminal, illegal aliens who are ripping our country
apart.” (Chacon 2007, p. 1843)
The 1995 report also evinced a zero-tolerance attitude for criminality by
noncitizens, whether lawful or unlawful. “[A] consensus seems to exist… there is
23

Anti-Drug Abuse Act § 7342 (amending INA § 101(a)), § 7343 (amending INA §

242(a)).
24

Immigration Act of 1990, P.L. 101-649, Nov. 29, 1990, 104 Stat. 4978; Hernández
2013, p. 22.
25
House Committee on the Judiciary 1989, p. 52 (after criminal aliens were identified as
deportable, 77% were arrested at least once more and 45% were arrested multiple times before
deportation proceedings began).

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just no place in America for non-U.S. citizens who commit criminal acts here.
America has enough criminals without importing more.” (Ibid., p. 6)
In 1996, Congress then drastically expanded the categories of crimes
qualifying for mandatory detention, whether by lawful or unlawful noncitizens,
beyond crimes connected to the “war on drugs.”26 (Miller 2003, p. 622) These
categories are described above, and this law remains current today.
A note, however. Congress’ language required mandatory “custody,” not
mandatory “detention” (i.e. incarceration). (8 U.S.C. § 1226(c)) Subsequently
though, U.S. immigration enforcement agencies administratively adopted the
position that mandatory “custody” under INA § 236(c) requires incarceration,
rather than supervision.27 (AILA 2010) The U.S. government has declined to
change this position without explanation, despite immigrant advocates’ requests.28
(HRF 2012, p. 8 & n. 16)
2.4 Parallel Development of U.S. Pretrial Criminal Justice Reforms
The lack of change to mandatory immigration pre-hearing detention
policies since 1996 contrasts with recent U.S. criminal pretrial detention practices.
Criminal authorities detain far less than U.S. immigration authorities, even though
criminal pretrial detention shares the aims of preventing flight or danger.
Moreover, U.S. criminal justice authorities are increasingly employing
alternatives to incarceration, along with empirical tools to inform pretrial
detention decisions, which reduce detention and still show great success at
preventing flight and crime.
In practice, U.S. criminal authorities more readily employ a spectrum of
supervision practices—from check-ins, community supervision and bond, to GPS
tracking devices or house arrest, to jail on the most restrictive end.29 (Wiseman
2013, p. 22) For example, while New York criminal judges denied bail to one
percent of defendants in cases that continued past arraignment, DHS mandatorily
detained by law, without bail, nine percent of New York immigration arrestees.
26

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132, 110 Stat.
1214 (codified as amended in scattered sections of 8, 18, 22, 28, 40, and 42 USC.); Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208, 110 Stat. 3009
(codified as amended in scattered sections of 8 USC.).
27
In the U.S. criminal system, courts have reached the opposite conclusion. (Reno v.
Koray (1995) (defining “custody” to include those under control of the prison system).
28
Recently-passed U.S. Senate legislation would change this, and explicitly define
“custody” under INA § 236(c) to include electronic ankle devices. (“Border Security, Economic
Opportunity, and Immigration Modernization Act,” § 3715(d))
29
Indeed, U.S. criminal laws rarely categorically impose detention without bail. The
U.S. federal criminal code provides a rebuttable presumption that a defendant shall be denied bail
on public safety grounds, if charged with certain serious crimes or crimes of violence; but the
defendant is still provided a lawyer and a hearing to challenge that presumption. (18 USC § 3142)
U.S. mandatory immigration detention provides no similar hearing, nor appointed lawyer.

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(NYU 2012, p. 10) (And immigration authorities’ tendency to detain more
continues throughout their discretionary decisions).30
Notwithstanding criminal authorities’ tendency to detain less, criminal
authorities have increasingly incorporated alternatives to detention into pretrial
justice practices. Nine states, multiple localities, and the federal system now use
risk assessments, conducting an actuarial assessment of the likelihood of reoffense or flight that informs their detention decisions. (Pretrial Justice Institute
2012a, p. 3; Pretrial Justice Institute 2012b, p. 14) Risk assessments can
accurately differentiate risk of flight or danger with a fairly high accuracy rate,
according to criminal studies. (Pretrial Justice Institute, 2012a, p. 4) For
example, Kentucky’s statewide risk assessment protocol has resulted in a 90
percent appearance rate and only 8 percent re-arrest rate. (COSCA 2013, 6)
U.S. immigration authorities also recently introduced a risk assessment
tool in March 2013. (Sampson and Mitchell 2013, p. 103) That said, for
mandatory pre-hearing detainees, risk assessment offers no help.
U.S.
immigration authorities have not allowed alternatives to mandatory pre-hearing
detention.31 (Koulish and Noferi 2013a)
Although the U.S. pretrial criminal system still over-detains, the
immigration system over-detains even more. For example, a recent criminal
empirical study found that up to 25 percent of criminal pretrial detainees could be
released without concomitantly increasing crime, generally in three categories—
older defendants, defendants with previously clean records (i.e. only one criminal
charge at issue), and defendants charged with fraud and public-order offenses.
(Baradaran and McIntyre 2012, p. 554)
Yet the immigration system over-detains these individuals even more, and
categorically so. Mandatory immigration detention plausibly ensnares individuals
in all three non-dangerous categories. Immigration detainees are generally older,
as the immigration system detains any time after a crime (unlike the criminal
system, which detains immediately after a charge—crimes being more commonly
committed by younger people).32
(Schriro, 2012; Stumpf, 2011;

30

Another 71 percent of New York ICE arrestees were denied bail discretionarily by
DHS. DHS set bail for 20 percent of immigration arrestees, at markedly higher rates, while
releasing less than 1 percent on recognizance. Comparatively, New York criminal judges set bail
for 20 percent defendants, and released 68 percent on recognizance. (NYU 2012, p. 10) I plan to
address these vast discrepancies in future research.
31
Other concerns exist regarding immigration risk assessments. The current lack of
transparency, and concurrent possibility of over-weighting towards detention, is one. More
broadly, without transparency or process checks, risk assessment may facilitate a transition from
mass incarceration to mass supervision, with its own attendant set of concerns. (Koulish and
Noferi, 2013b) Robert Koulish and I plan to examine risk assessments in future research, based
on ICE immigration risk assessments received through FOIA.
32
As Dr. Dora Schriro points out, the immigration detention population thus has more
stable individuals with families and jobs, who are less dangerous. (Schriro 2012) Even regarding

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Hirschi and Gottfredson, 1983) Mandatory detention also holds individuals with
only one criminal charge—for example, an “aggravated felony,” which
encompasses minor crimes like sharing a marijuana cigarette. (Moncrieffe v.
Holder, 2013) And mandatory detention holds individuals charged with fraud or
public order offenses. Indeed, a “crime involving moral turpitude” is typically
one involving fraud, larceny, or intent to harm persons or property—for example,
jumping a subway turnstile (as involving theft of services), or a disorderly persons
offense (as involving intent to harm property).33 (Noferi 2012, p. 93)
In sum, while the U.S. criminal pretrial system begins to reform overdetention, mandatory immigration detention categorically inculcates overdetention into law. A noncitizen charged with a minor crime today will likely be
released pretrial in the criminal system, but if convicted, quite likely mandatorily
detained during deportation proceedings.
3 MANDATORY DETENTION: THE “NONCITIZEN PRESUMPTION”
PRACTICE

OF

DANGER

IN

Given this overview, I argue that U.S. mandatory immigration detention
today functionally operates on a noncitizen presumption of dangerousness. More
specifically, the presumption is that noncitizens who commit crimes are more
dangerous than citizens, and remain so beyond the time period of punishment for
their conviction, thus categorically warranting complete incapacitation through
incarceration for their remaining time in the U.S..34
I reach this conclusion by examining the implementation of U.S.
mandatory detention, in light of its two potential legitimate rationales—flight risk
and danger—and ruling out flight risk as an explanation. Technological advances
in alternatives to detention, such as tracking bracelets and GPS, prevent flight
nearly as well as detention. U.S. immigration and criminal authorities more
routinely cooperate to identify and track noncitizens. More fundamentally,
research preliminarily indicates that greater access to justice and less detention
may encourage high compliance with proceedings—even, I argue, regarding
noncitizens in immigration proceedings, traditionally presumed with higher
incentives to “flee into the interior.” Yet the U.S. refuses to employ alternatives
for the mandatorily detained.

immigration detainees with criminal histories, only 11 percent had committed violent crimes (as of
2009). (Schriro 2009, p. 2).
33
A separate 2009 study of immigration detention found that of the 42% of detainees
with a criminal record, 8 percent were convicted of fraud, public order offenses, or forgery or
counterfeiting. 30 percent were convicted of drug crimes. (Kerwin and Li 2009, pp. 20-21)
34
Jennifer Chacon argued that U.S. deportation policy generally incorporates a
“misguided belief that non-citizens require extra incapacitation in the form of criminal removal.”
(Chacon 2007, p. 1887) Here, I argue that mandatory detention extends this “extra incapacitation”
to the time period in removal proceedings, awaiting a determination.

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This suggests that danger remains the primary concern. The discourse of
immigration detention supports this, evidenced by U.S. immigration enforcement
officials’ statements that nearly exclusively focus on danger, and policies that
prioritize mandatory detainees as dangerous above all others. Essentially, the
U.S. does not trust noncitizens with convictions to remain at large, even
supervised by mechanisms that prevent flight like tracking bracelets or GPS.
I argue that this danger rationale—which I call the “noncitizen
presumption”—is grounded in stereotype and bias towards immigrants,
particularly “criminal aliens,” rather than empirical evidence. This disconnect
between immigrant criminality in discourse and fact is well-established in law and
social science literature, which I briefly reference below.
3.1 Flight Risk
Since 1996, when U.S. legislators last revisited mandatory immigration
detention, lesser restrictive alternatives have emerged, such as electronic tracking,
supervision, and case management, that prevent flight nearly as well as complete
incarceration at far less cost. (Sampson and Mitchell 2013; Kreimer 2012, p.
1511; Legomsky 1999, p. 541) Advances have already been demonstrated in
immigration proceedings. A 2000 study showed that 92 percent of “criminal
aliens” released under supervisory conditions attended all of their hearings. (Vera
Institute 2000, p. 33, 36)35 Or, Australia’s individualized case management
program achieved a compliance rate of 94 percent between 2006 and 2009. (NIJC
2010, p. 6)
Some of these advances are technological. Electronic tracking bracelets,
particularly, were not widely used in 1996, either in immigration or criminal
proceedings. (Kreimer 2012, p. 1511; Wiseman 2013, p. 23) Today, U.S.
immigration authorities do employ electronic monitoring, albeit not as widely as
detention. (Rutgers 2012; Koulish 2012) DHS’ “Intensive Supervision
Appearance Program,” as of 2011, supervised 17,454 individuals (albeit no prehearing mandatory detainees, and compared to 429,000 whom DHS detained).
(LIRS 2011, p. 31) This parallels the increasing use of electronic tracking in
pretrial criminal justice. (Wiseman 2013, p. 24) Technological alternatives to
detention also save significant money, costing $17/day or less versus $159/day for
detention. (Nat’l Immigration Forum 2013, p. 1)
Additionally, risk assessment tools exist today that allow officials to base
detention decisions on empirical assessments of danger or flight. (Koulish and
Noferi, 2013a) In 1996, immigration flight rates were high in part because DHS
made release decisions arbitrarily, by bed space, without identifying those more
35

As the study found, “mandatory detention of virtually all criminal aliens is not
necessary.” Even 82% of criminal aliens released on recognizance without supervision appeared,
as did 77% of those released on bond. The study did involve a selected group of detainees. On
the other hand, the study also employed lesser restrictive alternatives such as supervision, in
addition to electronic tracking bracelets.

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likely to flee. (Demore v. Kim 2003, pp. 563-64) Nor did DHS identify lawful
permanent residents with families and jobs, with more incentive to stay in the
U.S., as DHS can today. (Demore v. Kim 2003, p. 563)
More generally, although some immigrants unquestionably fled
proceedings then (and probably more than would today), more robust
comparisons today to criminal pretrial practices illuminate the disproportionality
of mandatory detention to remedy abscondment. Particularly, comparisons of
rates of appearance between immigration pre-hearing and criminal pretrial
populations establish a baseline not present in the 1996 debate.36 For example,
1990s U.S. immigration studies found that over 20 percent of deportable
“criminal aliens” failed to appear for hearings, which a U.S. Senate Committee
called a “high rate.” (U.S. Senate 1995, p.1) Yet this rate was not much different
than comparable criminal abscondment rates. Compliance figures for felony
criminal defendants released under non-custodial measures before trial have
commonly ranged from 40 to 70 percent.37 (Field and Edwards 2006, ¶ 88)
Put another way, immigration abscondment was never that high. Rather,
the public tolerance for noncitizen crime following abscondment appears low (as
Section 4 explores).
Secondly, greater coordination today between federal immigration and
local criminal authorities has remedied prior failures to identify deportable
noncitizens (as a precursor to preventing abscondment once identified). (Kreimer
2012, p. 1518) In the 1990s, the then-INS was widely criticized for not
identifying removable individuals after conviction. (Demore v. Kim, p. 518)
Today, though, Secure Communities, which mandates local criminal authorities to
share information with federal immigration authorities, makes it more possible to
identify removable noncitizens.38
Third, and most fundamentally, recent empirical immigration research
may rebut the historical immigration law presumption that noncitizens are
particularly likely to abscond immigration proceedings, and with it, rebut a
primary rationale for detention. Rather, recent research preliminarily indicates
that providing dignity, via access to justice and less detention, fosters trust and
subjective feelings of fairness, which Tyler and others have connected to
compliance in other fields. (Tyler 2006) I briefly describe potential implications
here regarding mandatory immigration detainees.
36

A 2003 U.S. Supreme Court decision upholding mandatory immigration detention
discussed rates of immigration flight without comparing them to criminal rates. (Demore v. Kim
2003)
37
Thus, this 2006 United Nations study assumed an immigration compliance rate over
80% was effective.
38
Although ICE requires localities to share information, some states and cities now
refuse to hand ICE noncitizen residents with criminal convictions. (New York Times, 2013b)
This reflects public disagreement with ICE’s policies, however, rather than technological
capability.

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Noncitizens have been presumed more likely to abscond immigration
proceedings, since they seek additional time in the country, and lose little by
absconding (except eventual removal). (Legomsky 1999, p. 537; Schuck 1996,
pp. 671-72) Along these lines, those with the least chance of success at a hearing
have been thought least likely to attend it. (Schuck 1996, p. 680) “Criminal
aliens” have in many cases no chance since 1996, since deportation is often
mandatory. Thus, so the argument goes, mandatory detention prevents flight by
those most likely to flee. (Heeren 2010, p. 631)
Yet recent research shows that treating noncitizens with dignity and
fairness significantly correlates with a predisposition to compliance—i.e.
providing a proper and prompt hearing, by a consistent decision maker, and most
importantly with access to early, reliable assistance and legal advice. 39 (Costello
and Kaytaz 2013; Sampson and Mitchell 2013, p. 110) For example, refugees
acknowledged the necessity of a process to determine legitimate claims. But as
Costello and Kaytaz found, refugees “expected not automatic protection, but a fair
hearing.” (Ibid., p. 15)
For example, a 2013 UNHCR study studied Toronto asylum seekers
released into shelters (not incarceration) pending immigration proceedings, with
minimal reporting requirements but increased access to representation. As one
asylum seeker said, “I do have trust in the system because I understand
it.” Toronto asylum seekers generally viewed the process as fair, and remained
cooperative with authorities. (Ibid., p. 18) This predisposition to comply
extended to adverse orders. (Ibid., p. 24) Conversely, asylum seekers in Geneva,
detained in worse conditions, with delayed hearings, and without ready access to
legal advice, viewed the process as deeply unfair, evidencing a predisposition not
to comply with orders. (Ibid.)
Tyler identified these subjective views of fairness, produced by procedural
justice, as correlative with perceived legitimacy and thus compliance. (Tyler
2006) This research has potential significance for immigration proceedings,
although more research should be done—particularly, regarding compliance by
noncitizens with varying membership claims and little relief.40 Notably, however,
alternatives to detention are proving successful even for “criminal aliens” without
relief. Canada’s Toronto Bail Program, for example, supervises many criminal
aliens with 90 percent compliance rates (although it screens clients for
amenability to supervision). (Field and Edwards 2006, pp. 85-89) And through
caseworker management, Sweden showed high rates of voluntary compliance
with adverse removal orders, with 82 percent of refused migrants arranging their
own return. (Phelps 2013, p. 46)
39

A 2011 survey of European detention similarly stressed early access to reliable
assistance and legal advice. (Amaral 2013)
40
For example, Tyler’s conception of legitimacy presumes membership and shared
purposes, while noncitizens have varying membership claims. (Tyler and Jackson 2014, p. 3
(studying U.S. citizens); compare Walzer 1996)

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Still, the U.S. refuses to employ alternatives for those subject to
mandatory detention. Even assuming theoretically that criminal aliens in removal
proceedings pose greater flight risk—an assumption research increasingly
rebuts—no evidence supports that flight risk is so much greater than ordinary
criminal pretrial risk to categorically warrant total incarceration. Indeed, U.S.
government officials do not argue this, but rather defend mandatory detention on
danger grounds. I examine these arguments next.
3.2 Public Danger
U.S. immigration enforcement officials since 1996 have essentially
presumed mandatory detainees too dangerous to release, even supervised. As
such, pre-hearing mandatory detention has become a particularly excessive, blunt,
and empirically unsound tool for “domestic crime control.” (Kreimer 2012, p.
1514; Heeren 2010, p. 633) Here, I contrast public statements and policies with
empirical evidence.
Generally, U.S. executive branch and immigration enforcement officials
have continually characterized their enforcement efforts as promoting “security”
and ensuring “public safety” by deporting “criminal aliens.”41 (McLeod 2012, p.
164)
Indeed, the Obama Administration dubbed its information-sharing
requirements for local police “Secure Communities.” More specifically, in 2011
ICE Director John Morton issued a “prosecutorial discretion” memorandum
setting ICE’s priorities as “serious felons, repeat offenders, or individuals with a
lengthy criminal record.” (Morton 2011a) Notably, immigration officials cast
criminal aliens as natural recidivists. For example, in 2011 Morton stated Secure
Communities was “removing those aliens whose criminal history demonstrates a
willingness to violate our laws….” (Morton 2011b)
Detention, concomitantly, is promoted as protecting the public from future
crimes. For example, ICE characterizes its detention efforts as ensuring
“security,” by focusing resources on “the most serious criminal offenders…in a
way that maximizes public safety." (U.S. ICE 2012; McLeod 2012, p. 127) Or, a
2009 government report characterized ICE detention as focusing on “dangerous
and repetitive” criminal aliens. (Schriro 2009, p. 11; Kreimer 2012, p. 1513)
Perhaps most specifically, in 2013, Morton characterized detention as
protecting “local communities [from] risks from suspected and convicted sex
offenders, weapons violators, drunk drivers, and other violent criminals.”
(Morton 2013) He continued, “These are not hypothetical risks.… additional
crimes being committed by these recidivist criminal aliens… include the
possession of a controlled substance, money laundering, burglary, spousal battery,
aggravated driving under the influence, and even attempted murder.” (Ibid.)
41

See U.S. Immigration and Customs Enforcement, Secure Communities, available at
http://www.ice.gov/secure_communities/ (““The highest priority of any law enforcement agency
is to protect the communities it serves,” and thus “ICE prioritizes the removal of criminal aliens.”)

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Mandatory detention, in turn, is characterized as protecting public
safety—perhaps unsurprising, since mandatory detention by law detains
noncitizens who have committed at least one crime. Yet ICE’s prioritization of
mandatory detainees is surprisingly high, even higher than those it individually
identifies as dangers. For example, a 2004 ICE policy memo, still in effect,
places mandatory detainees first among detention priorities, above “national
security interest aliens,” “aliens who exhibit specific, articulable intelligencebased risk factors for terrorism,” “aliens who present an articulable danger to the
community,” or “suspected alien and narcotics smugglers.” (Hutchinson 2004, p.
2) The memo provides no distinction between the various classes of mandatory
detainees—e.g., terrorism grounds, criminal grounds, or asylum seekers at the
border. Moreover, “[i]n the case of mandatory detention,” guidelines must be
heeded “strictly,” with ICE managers given no discretion to deviate (unlike other
categories). (Ibid.)
ICE’s 2011 “prosecutorial discretion” memo does not change these
detention priorities. Indeed, it reaffirms allocation of detention resources either to
support its public safety priorities, or for “aliens subject to mandatory detention
by law.” (Morton 2011a, p. 3) Moreover, it excepts mandatory detainees from its
proviso to relax detention for certain categories, such as “primary caretakers,” the
seriously physically or mentally ill, or the disabled, elderly, pregnant, or nursing.
(Morton 2011a, p. 3) ICE could have allowed tracking bracelets for mandatory
detainees, as alternative forms of “custody,” but has not.
In essence, ICE sets its mandatory detention policy by relying on
Congress’ legislative, categorical determination of danger, over its own agents’
identifications of individualized danger. One might counter-argue that Congress’
legislative determination left ICE with little choice, except ICE has declined one
choice it has.42 One explanation may be the Congressional criticism ICE has
faced for releasing detainees. For example, when ICE recently released
immigration detainees due to budget cuts, several elected officials assailed the
releases as “needlessly endangering American lives” (Washington Post 2013), an
“abrogation of [ICE’s] mission to ensure the safety and security of Americans”
(Grassley 2013), and a “federally sponsored jailbreak.”43 (Perry 2013)
Notably, these immigration officials’ statements and policies regarding
mandatory detainees do not cite flight risk. Indeed, ICE can now more readily
find noncitizens with convictions and supervise them at modest cost. Rather, the
apparent rationale is that noncitizens with convictions would commit more crimes
if on the streets during proceedings, even supervised—enough to categorically,

42

Contrastingly, the Obama Administration chose to implement a “deferred action”
policy for undocumented youth, despite Congress’ failure to pass legislation.
43
Not all elected officials posed this criticism. For example, Rep. Spencer Bachus (RAL) asked, “Are you overusing detention? Are some of these mandatory detainees where we
[Congress] could recommend they not be?” (Koulish and Noferi, 2013b)

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drastically reverse the normal presumptions towards release in the criminal
system. (Legomsky 1999, p. 541)
As a corollary, noncitizens are presumed vastly more likely to reoffend
(and violently) than citizens who committed similar crimes. This appears
empirically untrue. A 2012 Congressional Research Service study found that
recidivism by those arrested by ICE was significantly lower than recidivism by
the general prison population.44 (CRS 2012) If anything, mandatory immigration
detention results in greater over-detention relative to actual danger of recidivism
than in the criminal system, as noted above. Yet mandatory detention persists.
3.3 Stereotype and Bias Supporting the Noncitizen Presumption
Given this, I argue that U.S. mandatory immigration detention today
operates on a “noncitizen presumption” of dangerousness, which relies primarily
on historical stereotypes of foreigners as “dangerous others,” rather than any
empirical evidence of greater noncitizen criminality. Moreover, this stereotype
particularly infects detention, because the inherently speculative nature of
noncitizens’ lives before entering the U.S. amplifies the inherently speculative
nature of preventive detention decisionmaking.
There is no evidence that noncitizens are more disposed towards
criminality than citizens. Indeed, empirically, immigrants are generally more
law-abiding than natural-born citizens. (Chavez and Provine 2009, p. 83; Alba et.
al. 2005, pp. 901-19; Reid et. al. 2005, pp. 757-80) Migration, if anything,
contributes to a decrease in violent crime rates. (Guia 2012, pp. 27-29; Rumbaut
& Ewing 2007) Nor is a criminal conviction necessarily a “reliable indicator” of
dangerousness.” (McLeod 2012, p. 149) This is particularly true regarding minor
convictions, many of which qualify one for mandatory detention. 45 Moreover,
there is no evidence that a noncitizen poses a greater danger after a criminal
sentence. (Legomsky 1999, p. 539) If anything, noncitizen recidivism rates
appear lower than the general population, as noted.
Yet the public perception of immigrants as “dangerous others” persists.
(Guia 2012, pp. 27-29; Chacón 2007, p. 1887; Demleitner 1997; Garland 1996)
Immigrants, lawful or not, are regularly conflated with criminals. As McLeod
argues, a “stock crime-narrative framework” dominates immigration discourse,
and thus criminal aliens are seen to “threaten the security and well-being of U.S.
society.” (McLeod 2012, p. 164) Indeed, the use of detention—similar to
44

16 percent of ICE arrestees were rearrested for criminal activity within three years,
compared to 43% of U.S. criminal prisoners released in 2004 that were convicted and returned to
prison within three years. (Bennett 2012; Waslin 2012)
45
Nor is a conviction a reliable indicator of undesirability. (Cox and Posner 2007, p.
846) As Allegra McLeod points out, a noncitizen may have “possessed narcotics, trespassed,
shoved someone during a verbal altercation or pulled their hair, jaywalked, jumped a subway
turnstile,” and on and “still be a valued contributor” to the U.S., let alone not dangerous. (McLeod
2012, p. 149)

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criminal jail—reinforces the conflation of immigration with crime. (Ibid. p. 154)
Or, immigrants are conflated with other “dangerous others”—i.e. terrorists,
particularly after 9/11 in the U.S. (Baili 2006, 54) The very language of
immigrants as “aliens” contributes to immigrants being viewed as an invading
flood. (Cunningham-Parmeter 2011, p. 1559) Racial or ethnic prejudice is
historically part of the equation as well. (Chavez and Provine 2012, p. 80) Thus,
U.S. mandatory detention law functionally assumes that detention is necessary for
an individual’s remaining time in the U.S..
Additionally, the “dangerous other” trope particularly infects detention
policy because immigration detention is inherently predictive—informed by past
acts, but ultimately preventive and speculative. As David Cole argued, “no one
can predict the future,” and thus detention “decision makers all too often fall back
on stereotypes and prejudices as proxies for dangerousness.” (Cole 2009, p. 696;
Noferi 2012, p. 120; Robinson 2001, p. 1432) Moreover, the dangerous
immigrant stereotype is less refutable because a noncitizen’s life before entering
the U.S. is inherently speculative, and unknowable to immigration officials.
(Koulish 2012, pp. 63-64, 71) As Peter Schuck argued, “aliens who appear to be
first-time offenders may well have been convicted of other crimes in their home
countries… of which the INS simply has no record.” (Schuck 1997, p. 677) Or,
as U.S. Supreme Court Justice Anthony Kennedy stated, a “significant risk may
still exist” from “aliens who have completed prison terms,” since “[u]nderworld
and terrorist links are subtle and may be overseas,” and not reflected in U.S.
criminal records. (Zadvydas v. United States 2001, p. 714)
With immigration detention, I argue, this speculation regarding an
unknowable past amplifies the already-speculative nature of preventive detention,
in a way not possible regarding a criminal conviction based on tested evidence.
(Robinson 2001) Thus, it accentuates a government’s tendency to err on the side
of preventive detention. (Cole 2009, p. 696) Errors of detention are unknowable,
but errors of release are criticized.46 Thus, when any noncitizen could be a
recidivist criminal, the safer course is to detain, even after lengthy U.S. residency
without criminal activity. I return to these arguments in Section 4.2.1.
4 EXAMINING MANDATORY DETENTION’S ANIMATING RATIONALES
Here, I offer preliminary analysis of the animating rationales behind the
“noncitizen presumption” of danger, and mandatory detention generally. First, I
largely reject sub rosa criminal law rationales, and second, I explore expressive
rationales.

46

“How can one prove what someone would or would not have done had he been free?”
(Cole 2009, p. 696)

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4.1 Rejecting Sub Rosa Criminal Rationales
Deterrence or punishment, rationales customary to criminal law, likely do
not play an improper sub rosa role in pre-hearing mandatory immigration
detention for U.S. crimes. Deterrence plays little if any role in the detention of
residents committing crimes after entry. As to punishment, I argue mandatory
detention more likely (but not mutually exclusively) is animated by preventing
future crimes, not punishing past crimes. Moreover, to the extent mandatory
detention sends a message, it primarily expresses protection of the populace rather
than the individual condemnation emblematic of criminal punishment, which I
explore further in Section 4.47
4.1.1

Deterrence

First, deterrence plays little if any animating role in pre-hearing, post-entry
mandatory detention of noncitizens.
Deterrence certainly animated policies to deter arriving noncitizens,
particularly asylum seekers. For example, when the U.S. mandatorily detained
arriving Haitians by executive order in the 1980s, the deterrence rationale was
explicit. (Taylor 1997, pp. 154-55; Pistone 1999, pp. 225-228) As then-Attorney
General William French Smith stated, “[d]etention of aliens seeking asylum was
necessary to discourage people like the Haitians from setting sail.”48 (Silverman
2010, pp. 18-20)
That said, the deterrence rationale has much less salience to post-entry
detention of residents already here. Theoretically, mandatory immigration
detention on criminal grounds could serve a deterrent effect on criminal activity
by residing noncitizens. But I agree with Stephen Legomsky that detention
pending a deportation proceeding likely serves no meaningful deterrent effect,
over and above the applicable criminal punishment and deportation.49 (Legomsky
1999, p. 541; Hernandez 2013, p. 55) Moreover, recent U.S. government
statements regarding detention emphasize its incapacitative nature—i.e.
protecting the public from dangerous criminals—rather than its deterrent

47

Briefly, I note too that the rehabilitation rationale, present in criminal incarceration,
likely plays little role in pre-hearing immigration detention. For one, immigration detention’s
baseline assumption has historically been deportation of detainees, rather than their return, and as
a corollary rehabilitation has been presumed unnecessary from society’s standpoint. (Stumpf
2011, p. 1709). (That said, as more detainees receive procedural rights like appointed counsel and
win deportation cases, this might change.) (Noferi 2012, pp. 127-28) For another, rehabilitation
presumes remorse by the individual, which is less likely present (nor legally required) regarding
civil immigration law violations. (Hernandez 2013, p. 56)
48
Similarly, Australia passed its mandatory detention law to discourage so-called “boat
people” from arriving. (NIJC 2010, p. 2)
49
In any case, when the U.S. retroactively passed these mandatory detention laws, many
individuals had already committed crimes which could not possibly be deterred.

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impact—i.e. sending a particular message to noncitizens that immigration
detention will be imposed for crime.
4.1.2

Punishment

Secondly, I acknowledge that detention may plausibly be conceived as
extra punishment for noncitizens committing crimes, beyond the criminal
sentence.50 But I argue that detention more likely (but not mutually exclusively)
reflects a perceived need for prevention, based on noncitizen dangerousness.51
César Cuauhtémoc García Hernández argues persuasively that
immigration detention is legally punitive under U.S. Constitutional law, as
Constitutional tests define “punishment” by focusing on legislative intent.
(Hernández 2013) Hernández calls attention to legislators’ inclusion of
immigration detention laws (including mandatory detention laws) with anti-crime
legislation to fight the “war on drugs,” and argues that immigration detention was
intended to sanction and stigmatize criminal behavior. (Hernández 2013, p. 4) In
support, he notes some statements above, such as Senator D’Amato’s calling
aggravated felons “a particularly dangerous class,” or President Bush’s terming of
criminal aliens as jeopardizing “the safety and well-being of every American
resident.” (Ibid., p. 22).
Although legally, Hernández’ argument has merit, expressively, I argue
that the particular mandatory detention provisions evince a prevention rationale
more than punishment. These statements, and subsequent executive branch
statements, focus more on immigration detention as protecting the American
public from danger, rather than a tool for moral condemnation of noncitizen
crimes.52
Even assuming a punishment or quasi-punishment rationale exists in
immigration detention, mandatory detention appears more designed to
expressively send a message to society at large, rather than the individual
detainee. (Kahan 1996) Indeed, mandatory detention law is by nature
categorical, without reference to individual characteristics, and thus lacks one

50

Such punishment would of course be illegitimate, as immigration detention is legally
civil and preventive, not punitive. As Legomsky notes, no scholar has “sought to justify [prehearing immigration] detention on punishment grounds.” (Legomsky 1999, p. 540; Schuck 1996,
p. 670)
51
Here, I consider whether mandatory immigration detention is extra punishment for the
crime, not the immigration violation, because the crime triggers the immigration detention, not
immigration status. Indeed, lawful permanent residents may have no immigration violation save
the impact of the criminal conviction.
52
That said, the criminal provisions regarding those drug crimes, which increased
criminal sentences and imposed mandatory minimums, certainly conveyed a sense of moral
condemnation to the individuals involved. (Hernández 2013, p. 27)

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aspect of the expressive condemnation associated with criminal punishment.53
Even statements like the 1995 Senate Report’s, which state that “America has
enough criminals without importing more,” appear to reflect society’s tolerance
level for noncitizen criminality and conception of desirable migration, rather than
direct individual condemnation.
It is possible that immigration detention is designed both to punish for past
crimes and prevent future crimes; indeed, criminal incarceration can serve both
those functions. Yet any expressive condemnation appears eclipsed in practice by
Government expressions of robust enforcement and protection. I further consider
these expressions next.
4.2 Expressive Characteristics of Mandatory Detention
Finally, I offer preliminary thoughts regarding the expressive
characteristics of U.S. immigration detention, and explore two theories for the
animating rationales behind pre-hearing mandatory detention for U.S. crimes.54
In my view, these expressive characteristics explain much of the above-described
disconnect between the noncitizen presumption of danger and empirical reality.
Law has expressive, symbolic value, as many have set out. (Stuntz 2001,
p. 533; Anderson & Pildes 2000; Sunstein 1996; Lessig 1995; Edelman 1964)
Yet immigration law is uniquely, especially expressive, since it embodies
decisions by the polity through their Government to pick new members and
exclude others. (Stumpf 2006, p. 377; Walzer 1992, pp. 82-95) The spatial and
physical structures created by immigration law also possess expressive content.
For example, several scholars have explored the border and the physical fence
along it. (Bosniak 2007, p. 276; Fan 2008, p. 711; Gulasekaram 2012, p. 161-62,
169-70)
Here, I preliminarily explore the expressive dimensions of immigration
detention, the physical embodiment of enforcement inside the border. By
increasing the public severity of immigration enforcement, I argue mandatory
detention for U.S. crimes amplifies the expressive messages already inherent to
citizenship and membership delineations.55 (Stumpf 2006, p. 396; Demleitner
1999, p. 158; Bosniak 1994, p. 1055)
I proffer that mandatory detention is primarily motivated by expressive
qualities—to “send a message” to the U.S. populace, in common parlance. The
message is twofold—of active, competent protection of the populace from the
dangerous “criminal alien,” and of zero tolerance for criminality by noncitizens.
53

Dan Markel has distinguished the two forms of communication of the social meaning
of criminal punishment—communication to society and communication to the individual offender.
(Markel 2001, pp. 2206-07)
54
I plan to further explore these ideas in future research.
55
I build upon Margaret Taylor’s helpful analysis of detention’s deterrent messages
towards potential arrivals from outside the country. (Taylor 1997)

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Nothing expresses protection of the public in a preventive detention regime, or
revocation of a noncitizen’s presumptive ability to remain, like total incarceration
without possibility of release for the remaining time in the U.S..
Here, I analogize to Dan Kahan’s articulations of expressive functions of
criminal incarceration, but distinguish arguments for the immigration context.
Kahan and other criminal theorists’ posit that nothing expresses condemnation in
our modern liberal society like incarceration’s complete deprivation of liberty.
(Kahan 1997, p. 384; Kahan 1996; Markel 2001) With immigration detention,
designed to effect incapacitation, not condemnation, I posit that the physical
structures and categorical severity of mandatory detention effectively send an
analogous message of protection. Moreover, the larger the scale of detention, the
more visible the message to the public. (Taylor 1997, p. 157) And as ICE’s
director once said, ICE detains on a “grand scale.” (Kalhan 2010, p. 44)
Viewing pre-hearing, post-entry mandatory detention as expressive helps
explain several disconnects that have troubled immigration law scholars. For one,
it helps explain the “noncitizen presumption’s” vitality in the face of parallel,
empirically based advances in criminal law. More broadly, expressive analysis
helps explain the disconnect between severe, incapacitative detention practices
and individualized, rights-based norms that recognize U.S. lives, family, and
employment ties. (McLeod 2012, 132-42) Importantly, the expressed message is
categorical and designed for society at large, rather than individualized to any
case and designed for that immigrant. Mandatory detention does not speak as to
individual immigrants’ circumstances, because it is not speaking to them. (Miller
2003, pp. 653-54; Pistone 1999, p. 225)56
I theorize two, potentially complementary, theories for the animating
rationales behind these messages. The first I term “blaming the gatekeeper,” by
which the public assigns blame to the Government for its failure to exclude or
deport a noncitizen who later commits a crime, and the Government responds by
overcompensating to show protection via mandatory detention laws. The second
is a property law-derived theory of noncitizens as “invitees,” with mandatory
detention revoking the invitation upon commission of a crime, and returning the
noncitizen to the fiction of status quo ante when seeking admission at the border
(or at least, as close as physically possible inside it).
In setting out these theories, I aim to integrate institutional design analysis
of immigration law, by Adam Cox and others, with the social and political
analysis more traditional to immigration scholarship. (Cox and Posner 2008; Cox
2007) I offer a short preview here of these arguments, with future research to
follow.
56

As Teresa Miller stated, “A discourse that focuses on categories and sub-populations
rather than individuals… serves different objectives than one based on moral or clinical judgments
about individuals.” (Miller 2003, pp. 653-54) While “safety and absconding rationales are
capable of being directly applied to individual cases,” symbolic detention is not. (Pistone 1999, p.
225)

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25

Blaming the Gatekeeper

The title “blaming the gatekeeper” stems from an essential function of
government under immigration law to admit desired types and exclude others.57
(Cox & Posner 2007, p. 846; McLeod 2012, p. 164; Eagly 2010, p. 1296) It also
stems from the U.S. Government’s own self-conception, expressed in 1990s
initiatives like “Operation Gatekeeper” that allocated additional funding, fencing,
and agents to the U.S.-Mexico border. (Hing 2001)
Because of this gatekeeping function, I argue, the public uniquely assigns
blame to the Government for noncitizens who commit crimes. The Government’s
perceived failure is generally insufficient ex ante exclusion—either insufficient
enforcement, for those who unlawfully enter, or erroneous prediction, for those
who lawfully enter but later commit a crime.58 (Cox and Posner 2007) For those
who enter and commit one crime, the failure to prevent a second crime becomes
one of perceived insufficient ex post enforcement (with the first crime putting the
Government on notice that removal is possible).
In each case, the government’s gatekeeping role creates the perception that
it proximately causes any subsequent noncitizen crime, to employ a tort law
analogy—that the crime “never would have happened” absent Government
failure. (Prosser and Keeton 1984, p. 284) Put simply, the public holds the
Government more accountable for noncitizen crime than citizen crime. While a
citizen is “here,” for a noncitizen, the possibility always exists to be somewhere
else besides “here.” Immigration officials thus face uniquely targeted criticism
for crimes by those who “shouldn’t be here.”
This societal construction of Government proximate cause repeats
throughout discourse on noncitizen crime. For example, consider the case of
Carlos Martinelly-Montano, a Bolivian unauthorized immigrant (and thenpotential DREAMer) who in 2010, killed one nun and injured two others while
driving drunk in Virginia. (Boorstein 2010) Martinelly-Montano had two prior
convictions for drunk driving, neither of which ICE determined triggered
mandatory detention. Upon the second conviction, ICE released MartinellyMontano with a GPS tracking device, and Martinelly-Montano complied with
supervision conditions. (Vedantam 2011) Local police subsequently stopped
Martinelly-Montano for two other driving violations, but he was not convicted.
After multiple immigration court continuances, Martinelly-Montano crashed into
the nuns 18 days before his rescheduled deportation hearing, while still under ICE
supervision. (Ibid.)

57

For example, Ayelet Shachar termed the “crucial realm of responsibility” of
immigration regulators to “determine who to permit to enter, who to remove, and who to keep at
bay.” (Shachar 2009, p. 811)
58
To give an extreme example, some U.S. legislators criticized DHS for admitting the
Boston Marathon bombers as asylees when children. (Weigel 2013)

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The incident sparked criticism that cast ICE as proximately causing the
crime because it failed to expeditiously detain and deport Martinelly-Montano.
For example, U.S. Rep. Harold Rogers criticized ICE’s prioritizing of those with
only “serious” criminal records, and said “A life could have been saved had ICE
just simply done their job to begin with.” (Boorstein 2010) Similarly, the local
county supervisor blamed federal immigration authorities, stating, “This crime
need not have happened… if federal authorities, who now have blood on their
hands, had done their job in the first place and had this sleazebag deported.”
(Ibid.)
Or, when a New York unauthorized immigrant killed a mother and
daughter in a drunk driving accident, a group representing families of 9/11
victims criticized both Congress’ and the executive branch’s immigration
policies.59 “While crime is crime and the victims suffer equally whether the
perpetrator is a citizen or illegal alien, what makes illegal alien crime so different
is that the crime would have never happened if our government was doing its
constitutionally mandated duty and enforcing immigration laws…” (Rae 2009)
The fear of subsequent crime is inherent to preventive detention
determinations, such as criminal bail. Indeed, as David Cole noted, false positives
are unknowable while false negatives are “emblazoned across the front pages.”
(Cole 2009, p. 696) But this perception of proximate cause for noncitizen crime
amplifies that fear, and helps explain why, as Legomsky put it, “false negatives
[are] tolerated in the criminal context but not in the [immigration deportation]
context.” (Legomsky 1999, p. 546)
Yet although the spectre of proximate cause might explain why DHS or an
individual immigration judge might choose detention—and indeed, DHS
invariably does in individual cases60—it does not quite explain categorical
detention even for minor crimes. Here, I preliminarily argue that mandatory
detention represents an overcompensation by Congress and ICE to public
“blaming the gatekeeper,” to send a message to the U.S. populace of active,
competent protection from dangerous “criminal aliens.”61 Because individualized
decisions lack the symbolic value of law, individualized detention by judges
would not send a message so effectively. (Stuntz 2001, p. 533)
Mandatory detention law, implemented through the physicality of
detention facilities, provides a sense of symbolic order, analogous to the border
fence’s symbolic sense of order for those who seek “the omniscient power of the
government and the law to fix things.” (Fan 2008 p. 704; Taylor 1997 p. 154;
Motomura 2007) Indeed, mandatory detention establishes a kind of border within
59

The 9/11 hijackers overstayed their immigration visas.
As noted, DHS denied bail to 71 percent of ICE arrestees on discretionary, not
mandatory grounds. (NYU 2012, p. 10)
61
Here, Congress has passed the law, and ICE subsequently interpreted it as strictly as
possible by requiring detention rather than “custody.”
60

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borders, in placing a wall (or literally, four walls) between noncitizens who have
committed crimes and the U.S. public. (Shachar 2009, p. 811)
4.2.2

A Property Law Analogy: Detention of Noncitizens as Invitees

Although “blaming the gatekeeper” may explain the symbolic value of
mandatory detention legislation, it does not quite explain its severity towards
lawful noncitizen residents. Indeed, minor noncitizen crimes should theoretically
create minor blame, and resultant minor Government response—not the drastic
remedy of detention without bail until deportation.62
Thus, I explore here a complementary theory—that noncitizens who
commit crimes are viewed as “invitees,” per property law analogies, whom upon
committing a crime presumably violate the scope of permission granted by the
landowner (i.e. the U.S. public). This better explains the categorical, nearly zerotolerance attitude towards ex post crime expressed by mandatory detention law.
As Pratheepan Gulasekaram argues, property law analogies gain societal
acceptance because they transplant “innately recognizable neighborly norms into
the complicated arena of immigration law.”63 (Gulasekaram 2012, p. 176)
Several scholars, notably Peter Schuck, have explored the analogy of unlawful
immigrants as “trespassers.”64 (Schuck 1984, p. 7; McLeod 2012, pp. 128-33;
Fan 2009, p. 727; Boland 2006) For example, Schuck argued that “Americans
believe that illegal aliens… are like trespassers; they have no right to enter or
remain. Control of illegal migration, then, is not merely a pragmatic policy goal;
it assumes the character of a legal duty and a moral crusade… [and] Americans'
conceptions of citizenship reflect these imperatives.” (Schuck 1997, p. 7-8)
I posit here that mandatory detention laws reflect an “invitee”
construction, more applicable to post-entry conduct and not necessarily dependent
on unlawful entry. Under this theory, although the landowner (here, the U.S.)
owes duties to invitees, violating the terms of the granted permission forfeits the
right to be present. (Restat 2d of Torts, § 332) Mandatory detention law thus
expresses Government withdrawal of permission to be present, as much (or more
than) the actual dangerousness implied by a noncitizen’s crime.65 (Chacon 2007,
p. 189) As the 1995 Senate report stated, “there is just no place in America for
non-U.S. citizens who commit criminal acts here. America has enough criminals
62

For example, one could envision legislation imposing mandatory immigration
detention for drunk driving that results in death, rather than subway turnstile jumping.
63
Gulasekaram argued that U.S. border fence initiatives reflect and reinforce the societal
trespass analogy. (Gulasekaram 2012, p. 176)
64
Villazor also explores the connections between property law and immigration.
(Villazor 2010, p. 981)
65
As Chacon surmised, “[t]he crime is not the underlying offense so much as it is the act
of committing any transgression, whether great or small, while being present in the United States
as a non-citizen.” (Chacon 2007, p. 189) I depart from Chacon in analyzing detention specifically
pursuant to removal, and raising a different analogy than to the criminal law.

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without importing more.” (U.S. Senate Committee on Governmental Affairs
1995, p.6)
In doing so, mandatory detention approximates the fiction of the liminal
“arriving alien” state, outside society pending the Government’s decision to
admit—or as close as practically possible, by presuming detention unless
deportation is defeated.66 (Chavez & Provine, p. 80; Menjivar 2006) This is true
even for lawful permanent residents, for whom the governing presumption is
changed from “citizenship-in-training” to “liminal legality.” (Valverde 2010, pp.
224-29) The expressive presumption is banishment, and detention serves as a
physical way station on that conceptual path, unless and until someone defeats
deportation in immigration proceedings.67 (Sweeney 2010, p. 84)
An “invitee” construct may help resolve several troubling disconnects.
For one, “invitee” theory may help explain why mandatory detention applies
equally to lawful entrants (or residents) as to unlawful, and thus the disconnect
between the categorical harshness of detention and rights-based norms for longterm residents with jobs and families. Trespass theory cannot account for those
lawfully admitted, since there is no “entry without invitation.” (McLeod 2012, p.
131) But under “invitee” theory, no trespass need exist for the “criminal alien” to
violate social norms. Indeed, criminal activity would violate U.S. terms of
permission under any status short of citizenship.
Moreover, an “invitee” construct may help explain the nearly zerotolerance presumption for noncitizen crime that mandatory detention effects.68
Under an “invitee” theory, the expressed message is not only protection from the
dangerous, but post hoc exclusion of noncitizens committing crimes, even
minimally dangerous crimes. This may explain the departure from criminal
pretrial practices, which do not categorically impose a 100% incapacitation rate
upon categories of prior offenders (although some released pretrial invariably
reoffend). That said, this social “invitee” construct is imperfect, and I plan to
further explore it in future research.69
5 CONCLUSION
As a conclusion, I offer final thoughts as to the realistic chance that U.S.
mandatory detention will change.

66

Valverde noted that “practices of detention” play a role in creating “liminal
citizenship” status. (Valverde 2010, pp. 224-29)
67
Indeed, pre-hearing mandatory detainees are treated worse than actual “arriving aliens”
in one respect—that pre-hearing mandatory detainees are ineligible for parole.
68
Schuck, for example, justified pre-hearing detention of criminal aliens on grounds it
might prevent “twelve crimes a year.” (Schuck 1996, p. 668)
69
Indeed, although the rules set the norms, property law rules admit of exceptions—
“attractive nuisance,” for example (Schuck 1984, p. 7), or “adverse possession” for the long-term
unauthorized. (Gomez 2007)

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If mandatory detention is primarily expressive and designed to send a
message, then changes to mandatory detention are unlikely absent change in the
underlying discourse characterizing immigrants as dangerous “criminal aliens.”70
(Harvard 2012, pp. 1482-84, 1486; Dolovich 2011, pp. 266-67) There is potential
for that change in discourse, however.
For one, the sheer numbers in the deportation system, as the U.S. has
ramped up enforcement, causes greater recognition of the humanity of even
“criminal aliens.” President Obama alone has deported nearly two million from
the U.S. (Gonzalez 2013), which means two million sets of families, friends, and
colleagues affected by deportation.
Concurrently, immigrants’ rights advocates have increasingly challenged
the dichotomous discourse of good and bad immigrants (with “criminal aliens” of
course “bad”). (NIJC 2013) Indeed, a current rallying cry against deportation is
“not one more”—which omits a good/bad dichotomy.
Moreover, as more noncitizens are placed in proceedings, more are
defeating deportation, and thus rebutting the presumption that one in immigration
detention will not return to his or her American life. This trend may increase as
immigrants in proceedings are provided greater access to procedural rights such
as appointed counsel.71 These developments may cause greater public recognition
of the disproportionality of mandatory detention, and the deprivations that follow
from long-term residency.

70

As Sharon Dolovich noted, “a political strategy emphasizing the financial costs of
incarceration is bound to fail unless it also generates an ideological reorientation towards
recognizing the people the state incarcerates as fellow human beings and fellow citizens.”
(Dolovich 2011, pp. 266-67)
71
For example, a New York study found that 74 percent of those not detained but having
a lawyer won their immigration removal proceedings, while even 18 percent of those detained
with lawyers won. (New York Immigrant Representation Study 2011, pp. 363-64) New York
City subsequently funded a pilot project to provide lawyers to the detained in immigration
proceedings, and other cities are exploring similar efforts. (Noferi 2013)

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