Modern Challenges to Mandatory Immigration Detention: Building Constitutional Walls Around Statutory Expansions

Authors

Timothy Zurcher

Document Type

Note

Abstract

(Excerpt)

Pierre Michel arrived in the United States from Haiti at three years old as a Lawful Permanent Resident (“LPR”). After developing substance abuse issues in his adolescence, Michel received several nonviolent criminal convictions and was detained in contemplation of his deportation. Nearly two years later, Michel was finally released after successfully petitioning for Cancellation of Removal. Michel had no opportunity to obtain his freedom sooner, despite his clear eligibility for relief. Like Michel, in 2003, student Sylvester Owino pled guilty to second-degree robbery without understanding the immigration consequences of his conviction. After serving over two years in prison, Owino spent nearly another decade in immigration detention fighting for asylum, ineligible for release on bond based on his criminal conviction.

Michel’s and Owino’s stories are too common given the sheer numbers of detained migrants in the United States. At its pre- COVID peak in 2019, the United States detained over 55,000 migrants per day. This unprecedented number represents an eight-fold increase in daily detainees over the last twenty-five years, rising from a 1994 peak of under 6,800 per day. While around seventy percent of migrant detainees are released within a month of their detention, the rest are left to languish for much longer periods. This incredible rise coincides with Congress’ passage of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). The IIRIRA was a major piece of legislation that overhauled many existing provisions of the Immigration and Nationality Act (“INA”), the backbone of American immigration law.

One of the most consequential changes to American immigration law stemming from the passage of the IIRIRA was the codification of 8 U.S.C. § 1226(c), otherwise known as the “mandatory detention provision.” This provision demands that the government detain certain criminal noncitizens who have committed removable offenses for the duration of their removal proceedings. This group is largely ineligible for release on bond and thus their detention often continues for months on end. Since codification, the mandatory detention provision has faced many legal challenges, culminating in two landmark decisions by the Supreme Court of the United States that changed the American immigration landscape.