To Loose the Bonds: The Deceptive Promise of Freedom from Pre-Trial Immigration Detention

Abstract

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through custody determination, or bond, proceedings focused on the question of whether a migrant poses a flight risk or danger to the community. Yet, because the proceedings skip the critical inquiry into the need for detention before setting monetary bond requirements for release that are difficult to fulfill, freedom remains elusive.Custody determination proceedings are a cornerstone in the U.S. immigration detention edifice but have received scarce attention. Furthermore, the public debate on mass incarceration, which could meaningfully inform the discussion, generally ignores the reality of expansive immigration detention, including for pre-trial detainees who might be released. This Article takes up the task of critiquing the role and functioning of immigration custody determination proceedings, in part by joining together the conversations taking place in the immigration and criminal pre-trial realms. In this Article, I assert that immigration custody determination proceedings fail to preserve and protect the constitutional presumption of liberty applicable to all persons facing detention without a criminal conviction. The proceedings result in automatic detention without meaningful individualized consideration or review. Furthermore, they adopt elements from the criminal pre-trial system that are ill-suited to the immigration setting while failing to incorporate lessons learned in the criminal justice setting. Important considerations in the criminal justice context, such as the inadvisability of emphasizing monetary bond, do not make their way into immigration custody determination proceedings, with negative results for liberty. Given these realities, the Article both proposes normative changes to immigration custody determination proceedings and calls for additional research in order to rationalize the process. These reforms would realign the system with the limited purposes of immigration detention in order to protect liberty and avoid the significant human and societal costs associated with detaining individuals who might safely be released.