Good Things Come to Those who Wait? Reconsidering Indeterminate and Indefinite Detention as Tools in U.S. Immigration Policy

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Intercultural Human Rights Law Review


Detention of deportable immigrants is a major component of the United States' immigration enforcement policy. Our cultural consciousness is rife with examples of detention practice throughout our history and detention is a part of our immigrant tradition. European immigrants passed through Ellis Island quickly unless a reason, usually health-based, was presented to justify detention. This is so pervasive in our national mythology that even the fictional Vito Corleone of The Godfather movies was quarantined at Ellis Island for three months for smallpox infection. As a parallel model, in the early twentieth century the majority of Asian immigrants were processed and potentially detained at Angel Island in San Francisco Bay. In the early 1990s, political instability in Haiti led to a mass exodus of refugees who eventually were housed on the U.S. naval base at Guantanamo, Cuba. In 1993, Chinese migrants from the illfated smuggler's freighter Golden Venture were detained after their ship ran aground offshore of Rockaway Beach, New York. Historically, arriving "excludable" aliens were not entitled to release on bond, but generally could expect that immigration authorities would generously exercise their parole authority to issue them an identity document and release the immigrants into the United States pending resolution of their immigration applications. In 1996, Congress amended the Immigration and Nationality Act to increase categories of immigrants who would henceforth be subject to "mandatory detention," including non-citizens who were either inadmissible to the United States as arriving aliens or returning lawful permanent residents or deportable for security or criminal grounds. From 2001 until 2004, the year in which a coup d'6tat overthrew Haitian president Jean-Bertrand Aristide for the third time, political conditions in Haiti created another crisis of migration by boat. Haitian refugees (labeled "migrants") interdicted at sea by the U.S. Coast Guard were summarily returned to Haiti. United States immigration authorities instituted a policy that Haitian boat persons who reached the U.S. would not be paroled from detention. Most Haitians applied for asylum and were interviewed by asylum officers (civil servants within the Department of Homeland Security's department of Citizenship and Immigration Services) for a determination if they had a "credible fear" of asylum that merited full review by an immigration judge. The release rate for Haitians who were found to have a "credible fear" of persecution dropped from 96% in November 2001 to 6% between December 14, 2001 and March 18, 2002. As "arriving aliens" ineligible for bond, the Haitians were forced to fight their asylum cases, including any appeals, from within the confines of a detention center. The decreased exercise of parole authority was further reinforced by decisions of the U.S. Courts of Appeal finding that parolees were entitled to the right of adjustment of status. The INA provided for this right, but the implementing regulations, later determined to be ultra vires by the courts, excluded parolees from eligibility. Although the court victories helped gain permanent status for those who were paroled previously, subsequent requests for parole have been largely denied. In addition to mandatory detention while cases are pending, successful applicants for relief under the United Nations Convention Against Torture (CAT) may also be detained indefinitely following their immigration court victories, as a result of prior criminal convictions. CAT is typically either a tool for applicants who face harm that is not "on account of' a protected fundamental right or an application of last resort for immigrants with severe criminal violations that are thereby ineligible for any other form of relief from deportation. In the latter instance, the alien's "relief' and detention may last as long as the alien's tolerance of detention in the United States outweighs his fear of torture in his home country. Finally, historically the term "indefinite detention" was reserved for a class of criminal immigrants whose deportation was impossible, typically because of a lack of diplomatic relations with the home country or because of a foreign country's individualized case assessment and denial to accept the deportation of a national of the country. Criminal immigrants ordered deported might languish in a jail or detention center for months or years, since the deportation could not be executed. Litigation and Supreme Court precedent produced a scheme for preventing indefinite detention in most situations, so contemporary cases can use habeas corpus lawsuits to prevent or challenge indefinite detention. This article will primarily focus on illustrating examples of lengthy detention that surely seem unending to the immigrants involved, if not "indefinite" as determined by the U.S. Supreme Court. I will address all other aspects of detention more fully than actual "indefinite" detention. Detention is one of many tools at the disposal of DHS to assure orderly immigration and provide predictable consequences for violators of the United States immigration system. I hope to illustrate the frequently coercive affects of the detention scheme and argue that in some, if not many, contexts detention actually impedes the orderly administration of justice, despite its assumed use to guarantee such orderliness. Finally, I subscribe to the usefulness of the scholarly techniques of the Critical Race Theory movement, particularly the use of storytelling to elucidate a legal problem, so narrative vignettes will appear throughout this article. The subjects of the narratives are undocumented immigrants, immigration violators or criminal immigrants, each classification progressively more onerous to many members of society. The narratives are used to provide a concrete illustration of a concept and each narrative is likely representative of hundreds of similar cases. The cases discussed herein are somewhat sanitized versions of actual facts. It is my hope that in depicting actual circumstances I can give voice to a politically weak constituency and show that the function of law unduly prejudices many immigrants, despite detention appearing facially as a reasonable component of U.S. immigration policy.

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