This post is part of our crimmigration series, which examines the intersection of criminal justice and immigration law. Access the full series here.
Immigration detention is a separate function from criminal detention because it serves a civil — not criminal — purpose. The Department of Homeland Security — not the Department of Justice’s Bureau of Prisons — oversees immigration detention, yet it closely mimics the penal system, resulting in civil confinement conditions that look very similar to punitive ones meant to punish lawbreakers. Nonetheless, civil detainees are not afforded the same rights as alleged criminals in the U.S. The outcome is that many detained immigrants wait for adjudication of their cases under conditions akin to prison confinement while lacking the basic legal protections and due process afforded to all defendants in our criminal justice system.
Who is detained?
Any noncitizen arriving at our borders or present in the U.S. and accused of committing a crime or even minor immigration violation is susceptible to detention by DHS’ primary internal enforcement agency, Immigration and Customs Enforcement (ICE). Additionally, noncitizens who commit a crime in the U.S. are subjected to criminal punishment before being transferred to ICE custody to face potential immigration consequences. ICE detention is possible even for minor violations like:
- A green card holder failing to update their address with USCIS after a move;
- An undocumented person running a stop sign; or
- An underage student visa holder consuming alcohol at a college party.
Additionally, any noncitizens who “are apprehended [by Customs and Border Patrol (CBP)] and determined to need custodial supervision” are transferred to ICE custody where an officer will determine if they should be detained or released on parole.
ERO [ICE enforcement] officers weigh a variety of factors, including the person’s criminal record, immigration history, ties to the community, risk of flight, and whether he or she poses a potential threat to public safety.
ICE established the Risk Classification Assessment (RCA) system in 2013 to use empirical data to determine the risk level of releasing noncitizens and minimize human bias. The RCA system is modeled on the Pretrial Risk Assessment (PTRA) system used in the criminal justice system.
Both systems face criticism for failing to provide neutral results, and neither has proven to limit arbitrary detention effectively. For example, one study showed that in a sample of the Baltimore ICE office, RCA recommended imprisonment in 77.2 percent of cases, even in cases where there was no indication that the individual posed a flight risk or a threat to public safety.
Broad mandatory detention requirements, which only exist in immigration law, contribute to the failure of the RCA system. For example, ICE must detain certain noncitizens who admit to offenses — even those outside the statute of limitations and those that did not result in charges or a conviction — that render them inadmissible or deportable under INA § 236(c) (as we will detail in a forthcoming post).
The evolving enforcement priorities of each administration also matter. In 2008, the Obama administration first implemented the Secure Communities program, which expanded the use of ICE detainers and led to the prolonged detention of noncitizens. In 2014, the administration discontinued Secure Communities in favor of the Priority Enforcement Program (PEP), which directed ICE to focus on detaining noncitizens who posed a threat to public safety. The Trump administration rescinded PEP and returned to a broader enforcement approach.
The Biden administration has been barred from imposing its enforcement priorities in the case of Texas v. United States, which the Supreme Court has refused to stay. These fluctuating enforcement priorities leave noncitizens in limbo regarding their risk of being detained.
Rights in detention
Once detained, noncitizens face circumstances nearly identical to those in jails and prisons. ICE’s detention network consists of government-operated facilities, local or state-run jails and prisons, and privately owned facilities (we will detail this in a forthcoming post). Noncitizens are held in secure environments with closed access and 24-hour monitoring, yet the protections afforded to the populations in detention are very not nearly as comprehensive as for criminal defendants.
Noncitizens are not afforded constitutional protections, including the Sixth Amendment right to a speedy trial and access to counsel (as we will detail in a forthcoming post). While in criminal law defendants can challenge the government’s delays, noncitizens have little choice but to wait — often, for years. For example, a June 2022 Supreme Court decision denied immigrants the right to a timely bond hearing in front of a judge. This decision allows ICE to detain immigrants for extended periods without trial.
Additionally, because immigration law is civil and not criminal, noncitizens are not appointed legal counsel. Ample evidence suggests that legal counsel improves a noncitizen’s chance at a positive outcome. Research shows that “represented immigrants in detention who had a custody hearing were four times more likely to be released from detention.”
Being detained also limits a noncitizen’s ability to obtain counsel. The American Immigration Council found that “only 14 percent of detained immigrants acquired legal counsel, compared with two-thirds of non-detained immigrants.” For the noncitizens who can obtain counsel, the ACLU has found that ICE has restricted communication between the detained person and their attorney.
The path forward
While the U.S. has historically relied on the criminal justice model, there are better models for civil immigration detention. For example, the American Bar Association cites nursing homes, residential treatment facilities, domestic violence shelters, and in-patient psychiatric treatment facilities as possible models for humane detainment.
The immigration system was established in civil law because it is unfair to detain and punish people who have not committed a crime and are only seeking to immigrate to America. We must take steps to disentangle immigration detention from the criminal detention system to ensure we are not penalizing innocent people.