-Executive Summary-

Over the past several decades, the U.S. government has issued various policies outlining how the Department of Justice would prosecute and detain migrants who have illegally crossed the border or attempted to do so. Researchers have separately analyzed the legality, costs, and humanitarian challenges of immigrant detention. However, no one has conducted a composite analysis of the legal, financial, and humanitarian effects on the U.S. government of its immigrant detention policies.[1] This thesis analyzes these implications and recommends possible areas of improvement for the United States in the realm of immigrant detention policies. In particular, it asks the following question: Considering the legal, financial, and humanitarian implications of immigrant detention, under what conditions should the United States implement policies to detain migrants who have either entered or attempted to enter the United States unlawfully? 

The legal concerns surrounding immigrant detention stem from the U.S. government’s use of a mechanism akin to criminal punishment, in the form of restricting migrants’ liberty, to correct a violation of federal administrative law. This mechanism also circumvents U.S. legal obligations under international law—created and championed by the United States and codified in U.S. law—by continuing to detain victims of violence, trafficking, and crime.[2] Over the years, U.S. immigration law has evolved to incorporate aspects of criminal law, such as mandatory detention for specified crimes as implemented through the Immigration Reform and Control Act of 1986.[3] Restricting a migrant’s liberty for an administrative function like border control blurs the line between criminal and administrative law.

In addition to the legal implications, the financial implications of immigrant detention are critical to understanding its overall effect on the U.S. government. Based on numbers of migrants detained over time, it is apparent that the United States struggles to control the flow of migrants into the country.[4] The Department of Homeland Security (DHS) currently has record apprehension numbers, which calls into question the accuracy of the immigrant detention estimates made for budgetary purposes.[5] Not only do the numbers of detainees fluctuate, but the cost of immigrant detention constantly fluctuates as well.[6] Finally, the mission of “securing our borders” constitutes nearly 23 percent of DHS’s overall budget of approximately $92 billion for fiscal year 2020.[7] Since all of these costs also fluctuate from year to year, the financial implications of immigrant detention are inconsistent, reported in fragments, and difficult to anticipate.

Finally, there are humanitarian implications stemming from immigrant detention. Although U.S. immigrant detention centers have detention standards in place to ensure humane treatment of detainees, some scholars question the ability of these facilities to provide non-jail-like conditions for individuals detained because of an administrative process.[8] In addition, the U.S. government’s continued detention of migrants who are victims of violence, trafficking, and crime is frowned upon by the international community.[9] Therefore, the U.S. government’s immigrant detention policies give rise to significant humanitarian concerns.

The research design for this thesis is a compilation of various methods of analysis to assess each pillar—legal, financial, and humanitarian—of immigrant detention. That is, each chapter uses a different analytical method based on the pillar analyzed therein:

  • Legal: legal analysis of the basis for administrative detention and applicable constitutional protections;
  • Financial: cost analysis of immigrant detention and profitability of private prisons;
  • Humanitarian: comparative analysis of the U.S. detention standards against international human right standards and internal immigrant detention standards.

Based on the conclusions of each analysis, the thesis then consolidates these determinations to assess under what circumstances the United States should continue to implement policies that determine which migrants to detain.

The legal analysis determined that immigrant detention—criminal-like but civil in nature and thus purportedly more humane than criminal detention—is legal, which was to be expected given the U.S. government’s continued use of immigrant detention as a deterrent to illegal immigration. However, migrants without lawful status have some lesser constitutional protections under theFourth, Fifth, and Sixth Amendments depending on the prosecution path taken by the U.S. government. Given the lesser constitutional protections provided to migrants in immigrant detention—and given that the U.S. government’s recognition of these protections depends on the immigrant status of the migrants—the government makes it unclear which legal path a migrant will traverse. Thus, the United States should consider the legal effects of the policy when deciding which policies to enact.

The complexity of using immigrant detention policies is compounded in light of its costs. Migrant flows are uncontrollable, and this thesis determined that the estimates Immigration and Customs Enforcement (ICE) uses to project the money needed for immigrant detention, which it predicts two years in advance, are inaccurate. The inaccuracy of the cost estimates leads to a congressional budget that fluctuates or a need for the U.S. government to pull money from other agencies mid-fiscal year, which in turn leaves those agencies to determine how to fully operate under a reduced budget. Thus, from a financial perspective, the U.S. government can and should control the costs of immigrant detention by expanding the use of enforcement discretion or more clearly defining the circumstances under which a migrant must be detained by immigration officials.

Adding to the legal and financial complications of immigrant detention is the U.S. government’s treatment of those from other countries who do not violate criminal laws in the United States. The humanitarian analysis shows that human rights experts view the United States as violating international human rights laws when it detains migrants. This perspective is further supported by the possibility that the U.S. government is directly violating multiple sections of the Universal Declaration on Human Rights. However, the more pointed finding of this analysis is that ICE has set standards for immigrant detention but repeatedly failed to meet them in various ways, including those related to the security of migrants and detention facilities, the health and medical care of migrants, and even basic sanitary and nutritional standards. These lapses in the humanitarian treatment of migrants in immigrant detention show why the United States should be trying to reduce its immigrant detainee population.

Although there is no standard for weighting these three pillars in an analysis, the U.S. government should at a minimum consider how each of them influences the perception and cost of using immigrant detention in deciding when to enact an executive policy and what the policy should require. While it is difficult to pinpoint specific circumstances under which an immigration enforcement policy that calls for additional mandatory detention should be used, government should limit its use of immigration enforcement policies to situations of dire need rather than political motivation or a desire to give Congress a “chance to fix the system.”[10] Research shows that the number of migrants detained fluctuates noticeably when the political party in the White House changes, and the influxes of migrants stem from fluctuating immigration enforcement policies that align with the political views of the sitting president.[11] The legal, financial, and humanitarian costs are thus exacerbated by the ebb and flow of policies of various administrations.

Overall, immigration enforcement policies should be limited to circumstances under which government officials can more accurately predict the costs or provide more flexibility for ICE to use discretion and allow for more limited detention when there is an unexpected surge in migrants crossing the U.S. border without lawful status. The following recommendations should be explored by the Legislative and Executive Branches of the U.S. government to determine how to minimize the negative implications that arise from detaining migrants, sometimes for extended periods.

First, in the short term, the United States should return to its historical use of immigrant detention as the exception, not the standard. Further, the U.S. government—all branches—should limit the use of immigration enforcement policies solely to circumstances under which there is a dire need to mitigate the free flow of migrants against the appearance of forgoing human rights and the other legal implications arising from immigrant detention. Although limiting the use of immigrant detention to just those who fall within the mandatory detention guidelines of 8 U.S.C. § 1226(c) would result in more people being released on bond, committing to these actions would provide additional protections to migrants and ensure that the United States is affording them protections relevant to their individual situations.

Second, the U.S. Congress should pass laws that more clearly define who is subject to mandatory detention while also providing clearer parameters on when ICE and other U.S. government entities can exercise discretion to release migrants pending further judicial actions. Using the legislative process to create and define immigrant detention laws allows for uniform protection of due process rights for all migrants entering and in the United States. This would also minimize the politicizing of immigration through multiple executive policies. Moreover, several sections of Title 8 of the U.S. Code could be modified: § 1225(b)(1)(B)(iii)(IV), § 1226(a), and § 1226(a)(2).[12] Given that statutory language regarding immigrant detention already exists, modification or further definition of the parameters would not necessitate complete immigration law overhaul, which has been part of ongoing debates for several presidential election cycles.[13]

Third, if it is accomplished more easily than modifying existing laws, the U.S. government could create a new section of law—either part of Title 8 or another more appropriate title of the U.S. Code. This new section of law would clearly define how the U.S. government will respond to humanitarian crises at the borders of the United States. This section of law could define the parameters of a humanitarian crisis, the classifications of migrants involved in humanitarian crises, when a migrant would be discretionarily released, and when a migrant would be detained. This section of law could also specify how the United States will accommodate detained migrants and how to finance the increased costs. Finally, this section of law could define which agency or department within the U.S. government leads the housing or detainment efforts of these migrants.

Fourth, although executive policies are lawful and U.S. presidents for decades have used them to mold their individual administrations, presidents should stop using executive policies as they relate to the restriction of liberty of people, including migrants, within U.S. borders. This change would minimize the appearance that they are trying to legislate from the Oval Office and give the legislative power back to the legislature. One way that the United States could limit the use of executive policies is to enact legislation that limits the executive branch’s authority as defined in the U.S. Constitution, Article II. By creating a defined limitation—for example, the president shall not issue executive policies that relate to any action covered by constitutional protections in the Bill of Rights—the executive branch’s executive power would be limited to actions that truly involve the administration of the U.S. government. This limiting clause in turn would prevent actions that teeter on the line of breaching constitutional protections, such as restricting liberty without full due process.

[1] Juan Rocha, “Operation Streamline and the Criminal Justice System,” Arizona Attorney 40, (November 2011).

[2] Inter-American Commission on Human Rights, Report on Immigration in the United States: Detention and Due Process (Washington, DC: Inter-American Commission on Human Rights, 2010), 16–19, https://www.oas.org/en/iachr/migrants/docs/pdf/migrants2011.pdf.

[3] Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, 100 Stat. 3359 (1986).

[4] Customs and Border Protection, “United States Border Patrol Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year 1960–2019” (Washington, DC: Customs and Border Protection, 2019), https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20‌Fiscal%20Year%20Southwest%20Border%20Sector%20Apprehensions%20%28FY%201960%20-%20‌FY%202019%29_0.pdf. This table does not depict numbers for FY20 and FY21 due to the additional Title 42 authority during the COVID-19 global pandemic.

[5] “Southwest Land Border Encounters (by Component),” Customs and Border Protection, accessed July 20, 2021, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters-by-component.

[6] Department of Homeland Security, U.S. Immigration and Customs Enforcement Budget Overview: Fiscal Year 2020 Congressional Justification (Washington, DC: Department of Homeland Security, 2019), 114, https://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_CBJ-Immigration-Customs-Enforcement_0.pdf.

[7] Department of Homeland Security, FY 2020 Budget in Brief (Washington, DC: Department of Homeland Security, 2019), 7, https://www.dhs.gov/sites/default/files/publications/fy_2020_dhs_bib.pdf.

[8] “ICE Detention Standards,” Immigration and Customs Enforcement, November 9, 2021, https://www.ice.gov/factsheets/facilities-pbnds.

[9] Inter-American Commission on Human Rights, Immigration in the United States, 16, 21, 96, 122, 129.

[10] Barack Obama, “Remarks by the President on Immigration,” Obama White House Archives, June 15, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration.

[11] Customs and Border Protection, “Total Illegal Alien Apprehensions by Fiscal Year.”

[12] 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (2018); 8 U.S.C. § 1226(a) (2018); 8 U.S.C. § 1226(a)(2) (2018).

[13] Claire Felter, Danielle Renwick, and Amelia Cheatham, “The U.S. Immigration Debate,” Council on Foreign Relations, August 31, 2021, https://www.cfr.org/backgrounder/us-immigration-debate-0.

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