Judicial Overreach or a Necessary Check on Executive Power? The Implications of Trump v. Hawai’i and the Resulting Push Against Nationwide Injunctions

Postscript | Immigration Law
Judicial Overreach or a Necessary Check on Executive Power? The Implications of Trump v. Hawai’i and the Resulting Push Against Nationwide Injunctions
by Christine Cheung*

Vol. 93, Postscript (April 2020)
93 S. Cal. L. Rev. Postscript 89 (2020)

Keywords: Immigration Law, Executive Orders, 

 

INTRODUCTION

Over the past three years, President Donald Trump has issued several executive orders that led people to turn to the courts for injunctive relief.[1] The current administration’s immigration policies, especially, have been the source of a number of such cases.[2] The primary example stemmed from Executive Order 13,769, which suspended the ability of millions of people from “countries of particular concern” to enter the United States.[3] Hundreds filed suit in opposition of this executive order;[4] however, only one needed to be successful in order to prevent implementation of the policy on a nationwide scale. This is because the injunctions that the courts issued not only applied to the named plaintiffs, but to everyone.[5] In Washington v. Trump, the plaintiffs successfully obtained a nationwide injunction against Executive Order 13,769.[6]

The Trump administration responded by issuing new iterations of the Muslim ban,” the policy’s colloquial name.[7] In September 2017, President Trump issued Proclamation 9645, resuspending the entry of the nationals of eight countries into the country.[8] In June 2018, the Supreme Court examined the validity of the order in Trump v. Hawaii.[9]

While this was happening, the House Judiciary Committee identified the issue of nationwide injunctions as one that it hoped to deal with in the upcoming term.[10] The Committee found that nationwide injunctions are problematic and introduced the Injunctive Authority Clarification Act of 2018 on September 7, 2018, which would prohibit such injunctions.[11] The House Judiciary Committee approved the bill on September 13, 2018,[12] but the bill failed to move to the next stage of the legislative process, avoiding a vote by the full House of Representatives.[13]

First, this Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trumpwhich together constituted the Muslim banand the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawaii Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawaii paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.

Ultimately, this Note will argue that Trump v. Hawaii was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district or circuit-wide injunctions.

 

I.  BACKGROUND

A.  The Constitutionality and Scope of Executive Orders

Article II of the United States Constitution vests the power to execute the laws of the nation in the office of the President.[14] From the obligation to faithfully execute the laws[15] arose the legitimacy of the executive order, “a type of written instruction that presidents use to work their will through the executive branch of government.[16] Executive orders direct the executive branch how to implement laws, and they “may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.”[17] However, the power to issue executive orders is not explicit in the Constitution; therefore, presidential “authority for the execution and implementation of these written instruments stems from implied constitutional and statutory authority.[18]

Although the president has Article II authority to issue executive orders directing the executive branch on how it should implement the laws, this authority is limited: executive orders may be reviewed by the courts,[19] revoked or modified by future presidents,[20] and  repealed or defunded by Congress.[21] This Note will focus on the implications of the judiciary being able to limit executive orders through the use of nationwide injunctions.

B.  The Rise of Nationwide Injunctions

Once a court holds that an executive order or other piece of legislation is invalid, the court determines what the appropriate remedy should be.[22] One option a court has is to issue a nationwide injunction, which “controls the federal defendant’s conduct against everyone, not just against the plaintiff.”[23] An argument exists that the descriptor “nationwide” to describe injunctions of this sort is improper[24] because the term implies that the most relevant characteristic of the injunction is that it applies everywhere in the country; however, the most significant and controversial part of nationwide injunctions is not that they apply everywhere, but instead that “they regulate the defendant’s conduct as to everyone in the countryeven if they were not party to the suit.[25] Howard Wasserman prefers to call them “universal” injunctions, since “they prohibit government officials from enforcing the challenged laws, regulations, and policies against the universe of persons who might be subject to enforcement, regardless of whether they were parties to the lawsuit producing the injunction.”[26] Ultimately, nationwide injunctions, by any name, refer to the scope of who could be protected from the federal action at issue, not where in the world those people will be protected.[27]

The first example of a court accepting and implementing a nationwide injunction as a viable remedy was in Wirtz v. Baldor Electric Co. in 1963.[28] Rather than citing any precedent exemplifying and justifying the use of a nationwide injunction, the D.C. Circuit court in Wirtz offered four reasons that it would allow such an injunction: consistency, fairness, statutory language, and constitutionality.[29] Courts today continue to invoke these fundamental reasons when arguing in support of a nationwide injunction.[30] After Wirtz, national injunctions slowly became a tool that more courts utilized, though they were not immediately popular.[31] At some point, however, a change in mindset occurred, and judges began to think of injunctions as an offensive measure, a means to challenge the validity of a statute.[32]

Contemporarily, courts “strike down” statutes; “instead of seeing courts as preventing or remedying a specific wrong to a person and only incidentally determining the constitutionality of a law, now many see courts as determining the constitutionality of a law and only incidentally preventing or remedying a specific wrong to a person.”[33] This newer mindset about the role of courts in examining issues strengthens the basis for nationwide injunctions.[34] Striking down a statute as facially unconstitutional means that the court likely should not apply the statute to anyone; thus, the equitable remedy would be a nationwide injunction.[35]

C.  Executive Order 13,780 and Proclamation 9645: “The Muslim Ban”

On January 27, 2017, President Donald Trump issued Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” immediately suspending the ability of millions of people from “countries of particular concern” to enter the United States.[36] Primarily, the executive order required the executive branch to suspend the entry of all refugees for 120 days while it implemented a new system that would tighten the vetting process, prohibit nationals from seven majorityMuslim countries from entering the country for ninety days, and cease the flow of refugees from Syria “until further notice.”[37] The Muslim ban left hundreds stranded in their travels and “led to the cancellation of 60,000 valid visas.”[38] Over the next few days, protests occurred, attorneys flooded airports across the country to give free legal help to travelers detained under the executive order, and the ACLU, amongst other organizations, filed suit challenging the executive order.[39]

Less than one month later, in Washington v. Trump, the plaintiffs were successful in preventing the implementation of Executive Order 13,769, as the court issued a temporary restraining order against the implementation of the policy.[40] The temporary restraining order was against the Executive Order “on a nationwide basis,” invalidating the order across the country.[41] In response, the Trump administration issued new, slightly modified iterations of the Muslim ban.[42] Executive Order 13,780 revoked Executive Order 13,769 and effectively replaced it.[43]

However, on March 15, 2017, in Hawaii v. Trump, a district court in Hawai’i granted an injunction in the form of a temporary restraining order before the new executive order took effect.[44] Specifically, the order clarifie[d] and narrow[ed] the scope of Executive action regarding immigration, extinguishe[d] the need for emergent consideration, and eliminate[d] the potential constitutional concerns identified by the Ninth Circuit.”[45] For their part, the plaintiffs asserted claims on both constitutional and statutory grounds, contending that the legal violations the executive order posed would cause them irreparable injury.[46] The court agreed, granting the temporary restraining order.[47] Citing Klein v. City of San Clemente,[48] the Court held that because a violation of the Establishment Clause qualifies as a First Amendment violation and the plaintiffs were held likely to succeed on the merits of the claim, the requirement that the plaintiffs suffer irreparable injury without a temporary restraining order was satisfied.[49]

Thus, on September 24, 2017, President Trump issued the third version of the Executive Order restricting travel in the form of Proclamation 9645.[50] The Proclamation suspended the ability of the nationals of eight countries—six of which were majorityMuslim countries—to enter the United States.[51] Like the previous executive order, this proclamation included exemptions, including lawful permanent residents of the United States, and a system for case-by-case waivers.[52] This Proclamation is what the Supreme Court examined in Trump v. Hawai’i.[53]

D.  Trump v. Hawaii

On June 26, 2018, the Supreme Court held that the President was within the scope of his executive power when issuing Proclamation No. 9645, and the proclamation did not violate the Immigration and Nationality Act (INA) or the Establishment Clause.[54] First, the Court held that § 1182(f) of the INA granted the President broad discretion to suspend the entry of aliens into the United States;[55] therefore, the Proclamation did not exceed the power granted to the President under § 1182(f).[56] Second, the Court rejected the plaintiff’s argument that the Proclamation violated § 1152(a)(1)(A), which prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.[57]

Next, the Court held that the Plaintiffs did not demonstrate a likelihood of success on their claim that the Proclamation violated the Establishment Clause.[58] Because the admission and exclusion of nationals is “a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control,” the Court reviewed the Proclamation under rational basis review.[59] However, the Court took the review a step further, looking “behind the face of the Proclamation to the extent of applying rational basis review” to determine whether the policy “is plausibly related to the Government’s stated objective.[60] Thus, the Court upheld the policy because it determined that it was possible to reasonably understand that the policy was based on the valid justification of national security and a desire to improve vetting processes, rather than the unconstitutional justification of discrimination against Muslims.[61] Thus, although the plaintiffs sought for the Court to further analyze the effectiveness of the Proclamation, the Court held that it “cannot substitute its own assessment for the Executive’s predictive judgments on such matters.”[62]

E.  The Injunctive Authority Clarification Act

On September 7, 2018, the House Judiciary Committee drafted the Injunctive Authority Clarification Act of 2018.[63] The goal was to preempt the problematic situation where “opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else.”[64] Therefore, the Act sought to prohibit nationwide injunctions by limiting the effects of an injunction to only parties listed in the case.[65]

Beginning in June 2017, the House Judiciary Committee committed to addressing the issue of nationwide injunctions.[66] In November 2017, the Subcommittee on Courts, Intellectual Property and the Internet held a hearing to discuss “The Role and Impact of Nationwide Injunctions by District Courts.”[67] This hearing culminated in the proposal of the Injunctive Authority Clarification Act of 2018, which would prohibit any court from issuing “an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.”[68] It was ordered to be reported to the House of Representatives, but it failed to move to the next stage of the legislative process, a vote by the full House of Representatives.[69]

 

II.  ARGUMENT

A.  Implications of Trump v. Hawai’i

The Supreme Court in Trump v. Hawai’i gave deference to executive action, despite the lower courts lack of hesitation in granting injunctions against the Muslim ban orders. Because Congress gave the President the exclusive right to regulate who enters the United States and for how long in the INA, and because the Court determined that Congress had vested that right broadly rather than narrowly, the Supreme Court reviewed the President’s actions under rational basis review.[70] Thus, the President needed only some rational, constitutional basis for the policy in order for the policy to be upheld. Consequently, deciding to apply rational basis review allowed for an expansion of presidential power and upheld a policy that seems to exemplify executive aggrandizement, although the Court could have restricted presidential power by finding that Congress delegated more narrow authority to the President under the INA.

There are benefits to restricting executive power as the Court declined to do in Trump v. Hawai’i (interestingly, the Court retained the right to make such restrictions in future cases). First, executive aggrandizement circumvents and almost flaunts the checks and balances system on which the United States government was founded. The ability of each branch to check the power of the other branch is essential to maintaining a federal democratic system. The Framers of the Constitution were especially concerned with maintaining a check on executive power because they feared that by vesting the executive power in a single person, the President, that person could aggrandize power and become a monarch or dictator.[71] Thus, generally speaking, both Congress and the judiciary were structured to be able to prevent the executive from accumulating too much power. That being said, the development of the administrative state has already pushed the Office of the President far beyond the scope of powers it was originally intended to have under the Constitution. Between executive orders, which essentially allow the President to legislate by directing the executive branch to interpret and implement laws, and offices under the President that facilitate unilateral bureaucratic control by the President, such as the White House Office of Presidential Personnel and the Office of Management and Budget, the President has significantly more power than other branches of government.[72] Although the legislative branch was designed to have more authority, deadlock has reduced that authority as increasing polarization in the United States has made it appear useless in the eyes of the public, confirmed by its shutting down three times the past five years.[73]

One could argue that there is no point in trying to prevent further executive aggrandizement; however, allowing more executive power could further derail the system and lead the United States down a more treacherous path toward despotism and demagoguery.[74] Additionally, maintaining a precedent that allows the President such broad discretion under rational basis review could result in the courts being unable to stop unconstitutional executive action before irreparable harm is done. The requirements to qualify for a preliminary injunction inherently limit injunctions to applying solely in instances where the court is seeking to prevent irreparable harm.[75] Allowing an expansion of executive power that would be above or outside the scope of what the courts can protect with preliminary injunctions would be to, at least temporarily, eliminate the only check on presidential power that can be immediately implemented. Outside of the preliminary injunction, the judicial branch must wait until a case has been fully litigated before granting a permanent injunction. Congress must either go through the entire legislative process to override presidential action, likely necessitating a two-thirds majority to override a presidential veto or the case must be so serious that the House of Representatives brings impeachment charges against the President. None of these options offer the same level of immediate relief that a court can offer through a preliminary injunction. Ultimately, several valid policy considerations suggest that the Supreme Court should not give such deference to executive action that it allows for further executive aggrandizement.

Alternatively, there are benefits to expanding executive power as the Court opted to do with its decision in Trump v. Hawai’i. For one, Congress is deadlocked and has become continually less efficient due to polarization. Thus, prioritizing efficiency suggests that concentrating more power in the executive branch, which does not face as much partisanship in its implementation of policy as Congress does, would allow for more effectual adoption of federal policy. Also, executive orders are within the scope of the powers vested to the president under the Constitution; therefore, courts should give such orders deference when considering their constitutionality and application in the context of preliminary injunctions. When the president is acting with the authority of the Constitution and of Congress, as was the situation in Trump v. Hawai’i, it is valid for him to have the most discretion and receive a rational basis review. The purpose of judicial review is not for judges to make independent, politicized determinations of whether they agree with the executive action, but to make impartial decisions about the validity of the executive action with reference to the Constitution and current laws. Similarly, despite the changes that have increased executive authority through the reorganization of the executive branch into the administrative state, the checks and balances system is likely strong enough to prevent executive aggrandizement from leading to despotism. While this might seem idealistic, the United States has the oldest written constitution still in use today.[76] From 1789, through two World Wars, the Great Depression, the Cold War, and more, the structural integrity of the U.S. government has remained intact, suggesting that the system is capable of enduring more than modern skeptics might assume. Because power is separated amongst the branches and each branch can exert checks on the others, it seems that allowing deference to executive action is not something that would cause the entire system to crumble.

Finally, allowing executive orders to expand presidential authority allows the President to secure the first-mover advantage in the struggle over policy. Federal policy has two avenues through which it can be implemented: the President, or Congress. Whichever institution acts first retains certain advantages, such as framing the major issues of a policy, establishing its timeline, and being able to proactively determine the policy’s finished product.[77] Alternatively, second-movers must be defensive and reactive to the firstmover’s policy and strategy decisions. When Congress has first-mover status, presidents must accept that legislation may never emerge from the Congressional process, that it may emerge in a form that is significantly different from the president’s expectations, and that it may emerge in a condition that is unacceptable, forcing the president to veto his own idea.[78] On the other hand, when the president has the first-mover advantage, Congress becomes the second-mover and all the features of the dual-channel, three-stage, veto system work to the president’s advantage.[79] Between 1973 and 1997, there were over 1,000 executive orders issued, and Congress only made thirty-seven attempts to countermand an executive order; notably, only  three of these attempts were ultimately successful.[80] Thus, it might be beneficial from a policy perspective that the Court in Trump v. Hawai’i allowed the president to retain the first-mover advantage, because that allows for more policy to be effectively implemented in the future.

As a whole, the Supreme Court likely decided Trump v. Hawai’i correctly based on precedent and the specific language of the INA, regardless of its effect on executive power. However, executive aggrandizement is an overall negative phenomenon because the president is able to obtain all of the positive effects of legislating through executive order and maintain the first-mover advantage. Because concerns exist about the state of despotism in the United States and the presidency has continued to accumulate power through the administrative state, the safest option to preserve separation of powers is to restrict executive power and prevent further executive aggrandizement.

Aside from the impact that Trump v. Hawai’i’s decision had on executive power, the case’s procedural history has significant implications for the future of litigation against government policy. The case demonstrated that obtaining a nationwide injunction is an extremely efficient way for plaintiffs suing the government to reach the Supreme Court. Thus, it is possible, if not probable, that future litigants may seek nationwide injunctions as their remedies if they hope to have a law or policy declared unconstitutional by the Supreme Court, regardless of whether or not a nationwide injunction is an appropriate remedy. This Note will discuss the positive and negative consequences of nationwide injunctions further in the following section, but Trump v. Hawai’i illuminated an extremely efficient path to the Supreme Court.

B.  Consequences of Nationwide Injunctions

Because nationwide injunctions have the ability to impact anyone in the country who would be subject to enforcement of a law or executive order, regardless of whether they are a party to the case, they are an exceptionally powerful tool at the court’s disposal. Due to their unique ability to put a stop to executive action faster than any other check on presidential power, nationwide injunctions have received praise and criticism from across the political spectrum, depending on who holds power. Thus, the ability of district courts to enact nationwide preliminary injunctions have both positive and negative consequences.

Preliminary nationwide injunctions yield several positive results. First, they can prevent irreparable harm across the country for all people who face the danger of having an unconstitutional policy enforced against them but who might not be a party before the court. Also, nationwide injunctions increase efficiency. When people all over the United States would sue over the same issue, as they did with President Trump’s travel ban executive orders, it saves both time and money to allow one court to respond on behalf of them all. Similarly, such a process allows for nationwide uniformity of application, which is desirable in the law because all those who are similarly situated should have the same outcome under the law. Furthermore, nationwide injunctions allow for complete relief to plaintiffs because they ensure that the plaintiffs will not be negatively impacted by an unlawful policy directly or indirectly.[81] This is especially true in the case of institutional plaintiffs, for whom a plaintiff-specific injunction would not provide complete relief because they interact with others who may be burdened by the administrative law from which the institutional plaintiff should have injunctive relief.[82] Finally, nationwide injunctions can be a useful tool to combat the imperial presidency and prevent further executive aggrandizement, as discussed above, especially as Congress becomes too deadlocked to advance much policy.

On the other hand, nationwide preliminary injunctions also yield several negative consequences. First, allowing nationwide injunctions incentivizes forum shopping, which undermines judicial decisionmaking. One judge upholding a challenged law has no effect on other potential plaintiffs, which incentivizes other plaintiffs to, as Samuel Bray phrases it, “shop ‘til the statute drops,”[83] since if one district judge invalidates the law, the injunction controls the defendant’s actions with respect to everyone. Thus, one judge can undermine the opinions of all others by invalidating a law that has been upheld elsewhere through the use of a nationwide injunction. This makes litigation unpredictable. Additionally, nationwide injunctions undermine the need for Federal Rules of Civil Procedure Rule 23(b)(2), which allows for injunctive relief while maintaining certain due process protections, because nationwide injunctions can allow plaintiffs to get the same relief in an individual suit as they would as part of a class action.[84] However, the requirements to obtain class action status are not always easily met because of heightened commonality requirements,[85] so it could be necessary to preserve the nationwide injunction when many people would be unconstitutionally affected by a law or policy but do not have the time or immediate ability obtain class certification.

At the same time, allowing for preliminary nationwide injunctions increases the possibility of conflicting injunctions and territorial clashes between courts. As stated, one court may rule a law or policy valid, only to be “overruled” by a court in a different district issuing a nationwide injunction. President Trump’s executive order instituting the travel ban exemplifies this problem.[86] As Representative Goodlatte put it in his introduction of the Injunctive Authority Clarification Act, “opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else.”[87] Such a system seems inherently illogical, even if uniformity in the law is desirable. Also, nationwide preliminary injunctions prematurely freeze the law: short-term differences in lower courts allow for issues of law to percolate through various judges, which means a difficult legal question is more likely to be answered correctly . . . than if it is answered finally by the first panel to consider it.”[88] Thus, there is value to reducing the number of nationwide injunctions for purposes of having a complete analysis of the law by multiple judges.

Ultimately, while nationwide injunctions allow for uniformity in the law, increase efficiency, and can be a tool to combat the imperial presidency, their implications for incentivizing forum shopping and creating territorial clashes where district judges have the power to overrule one another undermines judicial decisionmaking. Therefore, injunctions should generally be limited to the parties before the court, and nationwide injunctions should be used sparingly and only in circumstances in which a policy would certainly cause irreparable harm to all those impacted by it.

C.  Implications of Eliminating Nationwide Injunctions Entirely

While the Injunctive Authority Clarification Act may have died on the floor, there is nothing preventing Congress from proposing a bill in the future that prohibits nationwide injunctions. Such a bill would have the potential to dramatically alter the current abilities that courts have with regard to the scope of nationwide injunctions. The judiciary has used nationwide injunctions to halt policy implemented by both ends of the political spectrum. As such, it is curious that judges who have been appointed, rather than elected, and who possess life tenure have the ability to alter and eliminate policy so completely. Judges are not accountable to the people, yet they have the ability to strike down policy created by government officers who are accountable to the people through elections. Thus, there are strong arguments that prohibiting nationwide injunctions would be a positive restriction on judicial power.

First, courts have become too powerful, even without nationwide injunctions. The United States allows the Supreme Court, and even lower courts, to decide controversial issues that the government has been unable to pass legislatively due to congressional deadlock, thereby creating law while circumventing the legislative process. An early example is in Brown v. Board of Education[89]: Congress was unable or unwilling to pass legislation eliminating school segregation, so people turned to the courts to remedy the injustice. By declaring school segregation unconstitutional, the Supreme Court effectively acted as a legislative body.[90] Examples of such legislation by the courts have continued through today—Reed v. Reed extended 14th Amendment equal protection rights to women,[91] Roe v. Wade restricted states’ ability to legislate against abortion,[92] and Obergefell v. Hodges legalized gay marriage,[93] to name a few. As the courts gained power unchecked by the other branches, “using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.”[94] Judges are not accountable to democracy, and they were not appointed to legislate: they were appointed to rule on the law.

Furthermore, the minority party at any given time should not be able to bypass the legislative process by finding a sympathetic judge who will grant a nationwide injunction. Logically, it makes no sense for courts to be able to enact a nationwide injunction when other courts may rule on—and in many cases, have ruled on—the same law differently. The fact that such territorial clashes happen implies that the law applies to different plaintiffs differently; therefore, no single court should assume that because a law should not apply to the parties before it, the law necessarily should not apply to everyone. Class action lawsuits already exist as a solution for parties who are similarly situated to be able to sue in one legal action to reduce total cost on each plaintiff and to increase efficiency. Thus, prohibiting nationwide injunctions would be a positive step toward reigning courts back toward their original purpose: considering the facts of the plaintiffs before the court and ruling on the law as it applies only to those plaintiffs.

However, in the face of congressional deadlock, nationwide injunctions may be one of the only effective tools available to combat executive aggrandizement. Eliminating nationwide injunctions would make it more difficult to take immediate action to stop an executive order once it has been issued. Also, when a court issues a nationwide injunction, it is not usually because the court finds that the law should not be enforced against the particular plaintiffs; it is because the court finds the law itself to be unconstitutional. Ever since Marbury v. Madison, courts have retained the ability to invalidate laws based on their unconstitutionality. Nationwide injunctions merely extend that power. Furthermore, while judges might not be accountable in the same way that the president or legislators are, that is intentional. Judges have life tenure so that they are not swayed by the passions of the people. They purportedly apply the law rationally and as they believe the Constitution directs, not how they think voters want them to interpret it so that they can be reelected. Thus, judges are in a unique position to be more trustworthy in their decisions.

Also, eliminating the judiciary’s ability to issue nationwide injunctions would reduce efficiency. When hundreds or thousands of people across the country need to file suit against a policy would not have the time or ability to join together in a class action lawsuit, like in response to President Trump’s Executive Order restricting entry on several majority-Muslim countries, it is more economically and temporally efficient to allow one court to respond on behalf of them all. Additionally, eliminating nationwide injunctions as a tool for the court increases the risk of a lack of uniformity in a law’s application, as some districts allow the law or policy and others do not. Uniformity of application is important because all people should be treated equally before the law, regardless of where in the country they live.

Ultimately, eliminating nationwide injunctions would probably be more harmful than it would be beneficial. Nationwide injunctions are an extremely useful tool against executive aggrandizement and an efficient method for protecting individual rights in the face of congressional deadlock. That being said, there are significant drawbacks to allowing nationwide injunctions, so they should be used in moderation and should be limited in some way, rather than be completely abolished.

D.  Other Possible Solutions

Since nationwide injunctions have serious drawbacks but are too useful to be abolished completely, they should be limited. One solution is only allowing district- or circuit-wide injunctions. This would reduce inefficiency because the injunction could cover more than just the parties before the court, without being so overarching as to cover the entire country, where plaintiffs may be affected differently. It would also reduce forum shopping, as the maximum area the injunction could cover would either be the district or the circuit. Circuit-wide injunctions could reduce territorial clashes, as circuits could give deference to one another and rule the same way. This, in turn, would make litigation less unpredictable than if judges could invalidate the decisions of other judges by granting an injunction against a law that those judges had upheld. Additionally, if there were clashes between circuits after the issuance or denial of a circuit-wide injunction, that could increase the likelihood that the case reached the Supreme Court, even if it did not involve an executive order. Both district- and circuit-wide injunctions would increase efficiency, since fewer affected people would need to file suit. Thus, geographically limited injunctions would reduce the drawbacks of judicial overreach associated with nationwide injunctions, while still allowing for some of the primary benefits of nationwide injunctions. Also, in the context of actions like President Trump’s executive orders restricting travel, a more limited injunction such as a district or circuit-wide injunction would still effectively make the policy toothless, since travelers from prohibited countries could fly into a state that had passed an injunction against the policy and then would be free to travel elsewhere within the United States. Thus, limiting nationwide injunctions to a smaller geographic scale would not fundamentally change what courts are able to do with regard to checking executive power.

Another possible solution to limit nationwide injunctions is prohibiting nationwide injunctions at the preliminary phase, only allowing them after the case has been decided on the merits. This type of a solution would retain the cost efficiency and uniformity benefits that nationwide injunctions offer, since the injunction would still apply nationally. Also, a judge’s decision to grant an injunction would be based on substantially more information if granted once the case has been decided on the merits than if it were granted as a preliminary injunction. However, this solution likely does not sufficiently address the concerns about judicial overreach.

 

CONCLUSION

Ultimately, both Trump v. Hawai’i and the possibility that Congress may pass a bill like the Injunctive Authority Act of 2018 have significant implications on the roles and relationship between the executive and judicial branches. The Supreme Court likely decided Trump v. Hawai’i correctly based on precedent and the specific language of the INA, regardless of its effect on executive power. However, the Court’s decision expands the scope of presidential authority. Executive aggrandizement is problematic because the president can obtain the positive effects of legislating through executive order while maintaining the first-mover advantage compared to Congress, which may be a slippery slope. The case is also relevant for the impact that its procedural history may have on future litigants—those suing the government may see the effective trajectory from nationwide injunction to an appearance before the Supreme Court and seek such an injunction as their remedy, regardless of whether such an injunction is appropriate.

In considering whether nationwide injunctions are ever an appropriate remedy, this Note contemplated both the positive and negative consequences that such injunctions have in terms of efficiency, effects on plaintiffs’ behavior, and the impact on judicial decisionmaking. As a whole, nationwide injunctions are a useful tool that should be used in extreme moderation because of their negative consequences. One possible solution to the problem of nationwide injunctions is limiting the geographic scope of injunctions to the district or circuit involved. Alternatively, it may be more efficient to prohibit nationwide injunctions at the preliminary phase, only allowing nationwide injunctions after the case has been decided on the merits, thereby retaining the cost efficiency and uniformity benefits that such injunctions offer while also requiring judges to base their decisions on substantially more facts.

Finally, a law such as the Injunctive Authority Clarification Act of 2018 would have serious ramifications. Because it would prohibit all nationwide injunctions, it would effectively eliminate concerns regarding judicial overreach and judicial legislating that critics of nationwide injunctions commonly voice, and it would minimize forum shopping and the problem of one district judge invalidating the decisions of other district judges by overturning a law or policy other judges had upheld. However, eliminating nationwide injunctions would reduce temporal and economic efficiency in situations where many people across the country are similarly affected by an issue to which they need an immediate solution. Furthermore, eliminating nationwide injunctions expands the chances that the law will not be applied consistently.

Thus, nationwide injunctions empower judicial overreach, which was a driving factor behind the Injunctive Authority Clarification Act. However, they are too useful as a check against executive aggrandizement to justify eliminating nationwide injunctions completely. Instead, nationwide injunctions should be limited in some way, such as geographically restricted to district- or circuit-wide injunctions.

 


[*] *.. Managing Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Political Science 2017, University of California, Los Angeles. Thank you to my parents, Eric and Lisa, for all of their encouragement and support. In addition, thank you to Professor Samuel Erman for encouraging me to pursue this topic and for his guidance during the drafting of this Note. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

 [1]. Avalon Zoppo et al., Heres the Full List of Donald Trumps Executive Orders, NBC News (Oct. 17, 2017, 8:58 AM), https://www.nbcnews.com/politics/white-house/here-s-full-list-donald-trump-s-executive-orders-n720796 [https://perma.cc/Y7B7-C7EX].

 [2]. See, e.g., Lydia Wheeler, Immigrant Groups Sue Trump Administration Over Travel Ban, The Hill (July 30, 2018, 2:11 PM), https://thehill.com/regulation/399528-immigrant-groups-sue-trump-administration-over-travel-ban [https://perma.cc/938W-XL38].

 [3]. Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8977 (Jan. 27, 2017).

 [4]. Wheeler, supra note 2.

 [5]. Howard M. Wasserman,Nationwide Injunctions are Really Universal Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335, 338 (2018) (“[Universal injunctions] prohibit enforcement of the challenged laws, regulations, and policies not only against the named plaintiffs, but against all persons everywhere who might be subject to enforcement of those laws.).

 [6]. Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012, at *2 (W.D. Wash. Feb. 3, 2017) (granting temporary restraining order against implementation of January 2017 Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States” (citation omitted)).

 [7]. See Timeline of the Muslim Ban, Am. Civ. Liberties Union: Wash., https://www.aclu-wa.org/pages/timeline-muslim-ban [https://perma.cc/CW8U-HCZZ].

 [8]. Donald J. Trump, Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, White House (Sept. 24, 2017), https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats [https://perma.cc/7M26-VF23] [hereinafter Trump, Presidential Proclamation].

 [9]. Trump v. Hawaii, 138 S. Ct. 2392, 23992402 (2018).

 [10]. Press Release, House Judiciary Comm., Goodlatte Statement at Oversight Hearing on Department of Justice Programs (June 8, 2017), https://republicans-judiciary.house.gov/press-release/goodlatte-statement-oversight-hearing-department-justice-programs [https://perma.cc/NWD4-Z9XZ] [hereinafter Press Release, Goodlatte Statement on Programs].

 [11]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [12]. See Press Release, House Judiciary Comm., House Judiciary Committee Approves Bill on Nationwide Injunctions (Sept. 13, 2018), https://republicans-judiciary.house.gov/press-release/house-judiciary-committee-approves-bill-on-nationwide-injunctions [https://perma.cc/R3L9-TM2C] [hereinafter Press Release, Nationwide Injunctions].

 [13]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as ordered to be reported by H. Comm. on the Judiciary, Sept. 13, 2018).

 [14]. U.S. Const. art. II, § 1.

 [15]. U.S. Const. art. II, § 3.

 [16]. Heritage Explains: Executive Orders, Heritage Found., https://www.heritage.org/political-process/heritage-explains/executive-orders [https://perma.cc/J4XG-RXTM].

 [17]. Vivian S. Chu & Todd Garvey, Cong. Research Serv., RS20846, Executive Orders: Issuance, Modification, and Revocation 1 (2014).

 [18]. Id.

 [19]. Justice Jacksons concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring), set out a tripartite scheme that courts use to this day to determine the constitutionality of a presidential action. At the height of presidential power, where he or she is acting with direct or implied authority from Congress, the Court applies rational basis review. At the lowest ebb of presidential power, where he or she is acting contrary to Congresss express wishes, the Court applies strict scrutiny. At the twilight zone of presidential power, where it is unclear which branch should act, the Court applies intermediate scrutiny. See NCC Staff, Executive Orders 101: What Are They and How Do Presidents Use Them?, Const. Daily (Jan. 23, 2017), https://constitutioncenter.
org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them [https://perma.cc/J2S6-5SK8]; see also Chu & Garvey, supra note 17, at 5.

 [20]. Chu & Garvey, supra note 17, at 7–9 (referring to Executive Order 13497, which revoked Executive Orders 13528 and 13422 and instructed the Director of OMB and the heads of executive departments and agencies to rescind orders, rules, guidelines, and policies that implemented President Bushs executive orders).

 [21]. Id. at 9–10. Congress may revoke an executive order by removing the underlying authority upon which the action is predicated, although such legislation could run counter to the Presidents interests and therefore may require a congressional override of a presidential veto.Id. at 9. Congress can withhold funding for executive orders by either denying salaries and expenses for an office established by an executive order, or by directly denying funds to implement a particular section of an order.” Id. at 10 (footnote omitted).

 [22]. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 424 (2017).

 [23]. Id. at 425.

 [24]. See id. at 425 (referring to such injunctions as national injunctions); see also Wasserman, supra note 5, at 339; Getzel Berger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. Rev. 1068, 1076 (2017).

 [25]. Berger, supra note 24, at 1076 n. 37 (referencing Bray’s term, “national injunction”).

 [26]. Wasserman, supra note 5, at 338 (emphasis added).

 [27]. See id.

 [28]. Bray, supra note 22, at 437.

 [29]. See Wirtz v. Baldor Elec. Co., 337 F.2d 518, 534 (D.C. Cir. 1963).

 [30]. Bray, supra note 22, at 438–39.

 [31]. Id. at 444–50. After Wirtz, judges viewed injunctions a defensive measure against the enforcement of an action by a public official, such that an injunction would require not merely that the plaintiff is injured . . . , but that there is a threat of enforcement against him, and it is the threatened enforcement that the injunction is meant to prevent.Id. at 450. Consequently, nationwide injunctions would be illogical under this type of antisuit injunction mindset, since the injunction should protect this plaintiff from that enforcement action.” Id.

 [32]. See Bray, supra note 22, at 449–50 (pointing to the adoption of the federal Declaratory Judgment Act in 1934 as a moment that broadened federal thinking and helped develop the idea that statutes could be challenged facially, meaning they would be stricken down as written).

 [33]. Id. at 451 (footnote omitted).

 [34]. Id. at 452.

 [35]. Id.

 [36]. Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8977 (Jan. 27, 2017).

 [37]. What is the Muslim Ban?, Anti-Defamation League, https://www.adl.org/education/
resources/tools-and-strategies/what-is-the-muslim-ban [https://perma.cc/P7YE-UWHN]. It impacted nationals from Syria, Iran, Sudan, Libya, Somalia, Yemen, and Iran.

 [38]. Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49, 49 (2017).

 [39]. See Miriam Jordan & Alejandro Lazo, Airports Clear Out, But Confusion Over Travel Ban Lingers, Wall St. J., https://www.wsj.com/articles/airports-clear-out-but-confusion-over-travel-ban-lingers-1485837752 [https://perma.cc/L2UH-W2KH], see also ACLU and Other Groups Challenge Trump Immigration Ban After Refugees Detained at Airports Following Executive Order, ACLU, https://www.aclu.org/blog/national-security/discriminatory-profiling/aclu-and-other-groups-challenge-trump-immigration [https://perma.cc/R3WX-NNPE].

 [40]. Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012, at *2 (W.D. Wash. Feb. 3, 2017) (granting temporary restraining order against implementation of January 2017 Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States” (citation omitted)).

 [41]. Id. at *8.

 [42]. See Timeline of the Muslim Ban, supra note 7.

 [43]. See generally Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (removing Iraq from the list of countries, creating an exception for people who already have visas and green cards, and removing the Syria-specific ban on refugees and references to an individuals status as being part of a religious minority).

 [44]. Hawai’i v. Trump, 241 F. Supp. 3d 1119, 1122–23 (D. Haw. 2017). The court discussed the changes from Executive Order 13,780 to Executive Order 13,769 and how the court would analyze the request for a temporary restraining order under the context that President Trump issued this new executive order to deal with the issues the court in Washington v. Trump identified. Hawai’i v. , 241 F. Supp. 3d at 1123–26, 1128–39

 [45]. Id. at 1125–26 (citation omitted).

 [46]. See id. at 1128.

 [47]. See id. at 1134 (holding that a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion and therefore, the plaintiffs were likely to succeed on the merits of their claim that the order violated the Establishment Clause of the Constitution).

 [48]. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).

 [49]. Hawai’i, 241 F. Supp. 3d at 1139.

 [50]. Timeline of the Muslim Ban, supra note 7.

 [51]. Trump, Presidential Proclamation, supra note 8. The justification for the countries selected to be restricted were those whose information sharing and managing systems were deemed by the President to be inadequate under the recommendation of the Department of Homeland Security and after a period of diplomatic efforts to encourage improvement of said systems.

 [52]. Id.

 [53]. Trump v. Hawaii, 138 S. Ct. 2392, 2399 (2018).

 [54]. Id. at 2400–02.

 [55]. Id. at 2408–10. The Court identified that the sole requirement for the President to restrict alien entry is that the President findthat the entry of the covered aliens would be detrimental to the interests of the United States.’ Id. at 2408 (quoting 8 U.S.C. § 1182(f)). To address plaintiffs argument that the Presidents justification for the Proclamation were discriminatory, the Court cited to Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993), noting that  ‘[w]hether the Presidents chosen method of addressing perceived risks is justified from a policy perspective is irrelevant to the scope of his [§ 1182(f)] authority.’ Trump, 138 S. Ct. at 2409 (second alteration in original) (quoting Sale, 509 U.S. at 187–88).

 [56]. Id. at 2409–10.

 [57]. Id. at 2413–15. The Court rejected plaintiffs argument because it “ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA,id. at 2414, because § 1152(a)(1)(A) does not limit the Presidents delegated authority under § 1182(f) because Congress could have written § 1152(a)(1)(A) in such a way that it would constrain the Presidents power to determine who may enter the country, but it did not. And because based on the history of § 1152(a)(1)(A), the section has never been treated as a constraint on the criteria for admissibility in § 1182,” and Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality.” Id. at 2415. The Court then pointed to examples from the Reagan and Carter administrations to further its point. Id.

 [58]. Id. at 2417–23. The primary evidence introduced by the plaintiffs consisted of the Presidents statements about Muslims during his campaign and since he assumed office, and they argued that national security concerns and vetting protocols were mere justifications to mask the true purpose of the Proclamation, to discriminate against Muslims. Id. at 2417–18.

 [59]. Id. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)).

 [60]. Id. at 2420 (referencing R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).

 [61]. Id. at 2420–21. It further noted that the entry restrictions against Muslim-majority nations were limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Id. at 2421.

 [62]. Id. at 2421 (citing Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948), and Holder v. Humanitarian Law Project, 561 U.S. 1, 3334 (2010)).

 [63]. Press Release, House Judiciary Comm., Goodlatte Introduces the Injunctive Authority Clarification Act of 2018 (Sept. 10, 2018), https://republicans-judiciary.house.gov/press-release/
goodlatte-introduces-the-injunctive-authority-clarification-act-of-2018 [https://perma.cc/BF73-DS7B%5D [hereinafter Press Release, Goodlatte Introduces Act].

 [64]. Press Release, Nationwide Injunctions, supra note 12.

 [65]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [66]. Press Release, Goodlatte Statement on Programs, supra note 10.

 [67]. See generally The Role and Impact of Nationwide Injunctions by District Courts: Hearing Before the Subcomm. on Courts, Intellectual Prop. and the Internet of the H. Comm. on the Judiciary, 115th Cong. (2017), https://republicans-judiciary.house.gov/hearing/role-impact-nationwide-injunctions
-district-courts [https://perma.cc/MT9K-P22R]. The Subcommittee heard from leading scholars on nationwide injunction. Each speaker presented on the consequences of nationwide injunctions, both positive and negative, although only one speaker affirmatively argued in favor of nationwide injunctions.

 [68]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [69]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as ordered to be reported by H. Comm. on the Judiciary, Sept. 13, 2018).

 [70]. Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018).

 [71]. See The Federalist No. 69 (Alexander Hamilton) (highlighting the differences between the President and a monarch to address the primary concern of the anti-federalists).

 [72]. Scott C. James, Assoc. Professor, UCLA, Lecture: The Administrative PresidencyPolitical Appointees and the Problem of Bureaucratic Discretion (Mar. 14, 2017).

 [73]. Jennifer Earl, A Look Back at Every Government Shutdown in US History, Fox News (Jan. 28, 2019) https://www.foxnews.com/politics/a-look-back-at-every-government-shutdown-in-us-history [https://perma.cc/9WGF-EPKW].

 [74]. In fact, many would argue that the United States has already reached the point of demagoguery. See Michael Gerson, Are Republicans Abetting a Demagogueor Something Worse?, Wash. Post (May 24, 2018, 2:14 PM), https://www.washingtonpost.com/opinions/is-donald-trump-an-instinctual-dema
gogue-or-an-instinctual-authoritarian/2018/05/24/cc62c342-5f8b-11e8-9ee3-49d6d4814c4c_story.html [https://perma.cc/WYK5-MLVL] (identifying President Trump as a demagogue); see also Bob Bauer, The Demagogue as President: Speech, Action, and the Big Parade, Lawfare (Feb. 9, 2018, 7:00 AM), https://www.lawfareblog.com/demagogue-president-speech-action-and-big-parade [https://perma.cc/D9
2X-3QAL]; Ross Douthat, The Taming of a Demagogue, N.Y. Times (Feb. 7, 2018), https://www.
nytimes.com/2018/02/07/opinion/trump-republicans-vote-democrat.html [https://perma.cc/LNB8-ZYJ3]; Christopher Woolf, Is Trump an Autocrat, a Demagogue, or Anything Like That? We Looked at Definitions, Pub. Radio Int’l (May 11, 2017, 5:15 PM), https://www.pri.org/stories/2017-05-11/trump-autocrat-demagogue-or-anything-we-looked-definitions [https://perma.cc/B62M-FGAF] (identifying Trump as authoritarian).

 [75]. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

 [76]. Sean Gorman, Goodlatte Says US Has the Oldest Working National Constitution, PolitiFact (Sept. 22, 2014), https://www.politifact.com/factchecks/2014/sep/22/bob-goodlatte/goodlatte-says-us-has-oldest-working-national-cons [https://perma.cc/H5FJ-DQFS] (confirming that the U.S. Constitution is the oldest written national constitution still in use today based on figures from Tom Ginsburg’s research with the Comparative Constitutions Project).

 [77]. Scott C. James, Assoc. Professor, UCLA, Lecture: Unilateral Policy Instruments and the Congress-Optional Presidency: Executive Orders (Mar. 2, 2017).

 [78]. Id.

 [79]. Id.

 [80]. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132, 165-66 (1999).

 [81]. Berger, supra note at 24, at 1084.

 [82]. Id. at 108485.

 [83]. Bray, supra note 22, at 460.

 [84]. Id. at 46465.

 [85]. Suzette M. Malveaux, Response, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56, 5859 (2017).

 [86]. Compare Louhghalam v. Trump, 230 F. Supp. 3d 26 (D. Mass. 2017) (refusing to enact an injunction against the travel ban), with Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012 (W.D. Wash. Feb. 3, 2017) (granting a temporary preliminary injunction against the travel ban).

 [87]. Press Release, Goodlatte Introduces Act, supra note 63.

 [88]. Berger, supra note 24, at 1086 (citing Richard A. Posner, The Federal Courts: Crisis and Reform 163 (1985)).

 [89]. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

 [90]. See id. at 495.

 [91]. See Reed v. Reed, 404 U.S. 71, 76–77 (1971).

 [92]. See Roe v. Wade, 410 U.S. 113, 164–66 (1973).

 [93]. See Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015).

 [94]. Kim R. Holmes, Has the Supreme Court Become Too Powerful?, Heritage Found. (Feb. 25, 2016), https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-pow
erful [https://perma.cc/W4E4-X23M].

On Immigration, Information, and the New Jurisprudence of Federalism – Note by Nathaniel F. Sussman

Article | Immigration Law
On Immigration, Information, and the New Jurisprudence of Federalism
by Nathaniel F. Sussman*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 129 (2019)

Keywords: Section 1373, Anti-Commandeering Doctrine, Murphy v. NCAA

 

This Paper argues that in the wake of the Supreme Court’s 2018 decision, Murphy v. NCAA—a case completely unrelated to immigration—there is now a single best answer to the constitutional question presented in the ongoing sanctuary jurisdiction cases. The answer is that the Trump Administration’s withholding of federal grants is indeed unconstitutional, but this is because Section 1373, the statute on which the Executive’s actions are predicated, is itself unconstitutional. Specifically, this Paper argues that the expansion of the anti-commandeering doctrine under Murphy provides a tool by which the federal appellate courts can invalidate Section 1373 as an impermissible federal regulation of state and local governments. By adopting this approach, courts can surpass the comparatively surface-level questions about the Executive’s power to enforce a particular federal statute, and instead address the more central issue: the existence of Section 1373.

This argument proceeds in the following stages. Part I provides a background for each of the central concepts in this analysis. These include (1) an explanation of the anti-commandeering doctrine in its pre- and post-Murphy forms, (2) a description of Section 1373, (3) a working definition of “sanctuary jurisdictions,” and (4) a brief overview of the sanctuary jurisdiction cases decided to date. Part II argues that, in light of the Supreme Court’s decision in Murphy, there is no question that Section 1373 is subject to anti-commandeering claims. Part III then argues that, as a matter of doctrine, Section 1373 should fail to withstand such claims because it does not qualify for any exceptions to the anti-commandeering rule. Finally, Part IV argues that, aside from Supreme Court precedent, there are a series of independent, normative reasons to strike down Section 1373. This Paper concludes that Section 1373 should be held unconstitutional in its challenge before the higher federal courts, including the Supreme Court of the United States if necessary, and that such a ruling is the most desirable method of resolving the sanctuary jurisdiction cases.

*. Executive Articles Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; M.S. Philosophy 2017, The London School of Economics and Political Science; B.A. Political Science 2016, University of Western Ontario. I am grateful to Professor Rebecca Brown for her invaluable guidance throughout this Paper’s development.  I also thank my family, friends, and peers at USC Gould for their helpful feedback on the presentation and substance of my arguments.  Finally, I thank the fantastic team of editors at the Southern California Law Review for their diligent and thoughtful work throughout the publication process.

 

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A National Study of Immigration Detention in the United States – Article by Emily Ryo & Ian Peacock

From Volume 92, Number 1 (November 2018)
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A National Study of Immigration Detention in the United StateS[*]

Emily Ryo[†] and Ian Peacock[‡]

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.

The bulk of the detained population consisted of men (79%) and individuals from Mexico, El Salvador, Guatemala, and Honduras (together, 89%). Over 59,000, or about 17%, of the detainees were juveniles under the age of eighteen. Every state in the United States had one or more facility, with Texas and California having the highest number of facilities and detainees. Detention in privately operated facilities and in remote locations was common. We analyze three key detention outcomes: detention length, inter-facility transfers, and facility-related grievances. The average detention length for adults released in fiscal year 2015 was thirty-eight days, though tens of thousands were detained for many months or years. A majority of these detainees experienced one or more inter-facility transfers, many involving movements across cities, states, and federal judicial circuits. In fiscal year 2015, the Detention Reporting and Information Line received over 48,800 facility-related grievances, a majority of which concerned issues pertaining to access to legal counsel and basic immigration case information.

We find that detention outcomes vary significantly across facility operator types (private versus nonprivate) and facility locations (within or outside of major urban areas). Specifically, our multivariate regression analyses show that confinement in privately operated facilities is associated with significantly longer detention and a higher number of grievances. We find a similar pattern of results for confinement in facilities located outside of major urban areas. On the other hand, confinement in privately operated facilities, and confinement in facilities located outside of major urban areas, respectively, are associated with lower risks of inter-facility transfers. These findings provide an important foundation for ongoing public discourse and policy discussions on the expanded use of detention as an immigration enforcement strategy.

Introduction

In Zadvydas v. Davis, a case about the constitutionality of indefinite immigration detention, the U.S. Supreme Court declared: “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”[1] As courts have noted, imprisonment implicates core due process issues because imprisonment not only engenders the loss of freedom of physical movement, but also inflicts deep social stigma and other enduring adverse consequences on the individual.[2]

Every day, tens of thousands of noncitizens in immigration proceedings face this deprivation of personal liberty through immigration detention.[3] The U.S. Department of Homeland Security (DHS), rather than the U.S. Department of Justice (DOJ), currently operates the largest confinement and supervised release program in the United States.[4] Under the Trump administration, the number of people booked into the custody of U.S. Immigration and Customs Enforcement (ICE) through its interior enforcement program has increased steeply.[5] This is not surprising given the administration’s announcement to employ detention as the default immigration enforcement strategy.[6] In accordance with this strategy, the Trump administration plans to build additional detention facilities across the country to accommodate the expected rise in the detainee population.[7] The Trump administration has also sought to lower the detention standards in order to make the facility contracts more palatable to third-party contractors.[8]

This shift in policy is taking place amidst growing reports that have documented a host of due process violations and human rights abuses in immigration detention. For example, these reports have drawn public attention to the rising number of deaths and suicides in detention, dangerous and substandard medical care, sexual and physical abuse, exploitative labor practices, and lack of adequate access to legal counsel, among many other issues.[9] Due to data scarcity, however, many of these investigative reports have been relatively limited in their scope and primarily focused on specific issues, regions of the country, or subpopulations. The same is largely true of scholarly research on immigration detention in the United States.[10] Fundamental questions thus remain at the national level about the detained population, the facilities where the detainees are confined, and their experiences and outcomes.

This study offers, for the first time, a comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records pertaining to all individuals who were in ICE custody in fiscal year 2015, as well as geocoded data and records of grievances relating to the facilities in which the detainees were confined, we examine who the detainees are, where they were held, and what happened to them. We also examine factors that predict variations in the following key detention outcomes: detention length, the number of inter-facility transfers that the detainees experienced during detention, and the number of grievances filed against detention facilities. Detention length and grievances capture basic aspects of detention experiences and outcomes. Inter-facility transfers constitute another important—albeit largely overlooked—measure of what happens to individuals in detention. Transfers warrant a special scrutiny because they can substantially hinder access to legal representation, sever family ties and community support, and separate detainees from the evidence needed in their court proceedings.[11]

In analyzing these key detention outcomes, we pay special attention to two features of the U.S. detention system that have become a focal point of growing concern among advocates, scholars, and policymakers. The first is the expanding role of private companies in the U.S. detention system.[12] According to a recent government report, 65% of the average daily detainee population as of September 2016 were confined in facilities operated by private, for-profit contractors.[13] The second prominent feature of the current U.S. detention system relates to the location—or more precisely, the relative remoteness—of many of the detention facilities.[14] In short, we assess whether the detention outcomes of interest in this study are related to confinement in privately operated facilities and in facilities that are located outside of major urban areas.

The remainder of this Article proceeds in three major parts. Part I provides the basic legal, political, and research context for understanding immigration detention as it has evolved over time and as it stands now. Part II describes the data we analyze in this Article. We obtained and merged three major datasets to conduct our analyses. The primary dataset comes from records that ICE provided to the Transactional Records Access Clearinghouse (TRAC) pursuant to the Freedom of Information Act (FOIA). This dataset consists of longitudinal information on each individual detained by ICE during fiscal year 2015. The second dataset is a compilation of geocoded records that allow us to examine distances to and from detention facilities and other locations of interest in this study. The third dataset consists of records that Human Rights Watch obtained through FOIA from ICE on the complaints and grievances that detainees and other stakeholders submitted involving the detention facilities. Part III presents our key empirical findings.

Taken together, our findings constitute an important first step toward understanding the possible structural determinants of detention experiences and outcomes. More generally, our findings provide a critical empirical foundation for future research and policy debates on the expanded use of detention as an immigration enforcement strategy.

I.Background

A.Political Context

We begin with a brief discussion of the current political context of immigration detention.[15] The modern era of immigration detention in the United States can be traced to the enactment of two laws in 1996: The Antiterrorism and Effective Death Penalty Act (AEDPA)[16] and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).[17] The AEDPA broadened the list of crimes defined as an aggravated felony and expanded the types of offenses (beyond aggravated felonies) that trigger mandatory detention.[18]

A few months later, Congress enacted the IIRIRA to further expand the use of immigration detention, including by broadening the categories of noncitizens subject to mandatory detention.[19] Aggravated felonies now include offenses that are neither aggravated nor a felony under criminal statutes, such as a simple battery or shoplifting conviction.[20] Further, the category of individuals subject to mandatory detention now extends not only to noncitizens with criminal convictions, but also to certain classes of arriving aliens.[21]

As expected, the number of noncitizens detained by immigration authorities during the post1996 period rose steadily and dramatically.[22] In 1994, an average of 6,785 noncitizens were detained on any given day. By 2014, that daily average had surpassed 33,200 (see Figure 1). The average length of detention also increased during this time period, from twenty-six days to thirty days.[23] The DHS’s budget for fiscal year 2017 estimated an average rate of $126.46 per day for adult detention beds and an average rate of $161.36 per day for family detention beds.[24]

The Trump administration’s immigration enforcement policy seeks to bring dramatic changes in the use and operation of immigration detention. First, signaling a sharp departure from the Obama administration’s policy of prioritizing noncitizens with criminal convictions for removal, the Trump administration’s plan targets virtually all unauthorized immigrants regardless of whether they have been convicted of a crime.[25] This policy shift has already resulted in increased removal rates of noncitizens without criminal convictions.[26] Second, the Trump administration seeks to detain all noncitizens apprehended at the border pending their immigration proceedings.

To implement these plans, President Trump has called for an allocation of “all legally available resources” for the immediate construction, operation, and control of detention facilities near the border with Mexico, or for the establishment of contracts for such facilities.[27] In June 2017, Thomas Homan, the ICE Acting Director, stated that his budget for the fiscal year 2018 included nearly $4.9 billion to expand the average daily detained population to over 51,000.[28] According to the latest government statistics, the overall book-ins to ICE detention declined in fiscal year 2017 due to a decline in book-ins resulting from border apprehensions.[29] However, the initial book-ins resulting from ICE’s interior enforcement programs were 42% higher between January 20, 2017 and September 20, 2017 (the period after President Trump took office), compared to the same time period in fiscal year 2016.[30]

B.Legal and Policy Framework

There are many aspects of immigration detention that make detention indistinguishable from criminal incarceration.[31] Yet the law considers immigration detention to be strictly civil—that is, “nonpunitive and merely preventative” in nature.[32] Consequently, the basic legal protections that are afforded to criminal defendants, such as the right to government-appointed counsel, the privilege against self-incrimination, the ban on cruel and unusual punishment, and the right to a speedy trial, are deemed to be inapplicable in the immigration law context.[33]

Beyond the basic principle that detention is civil, the legal framework governing immigration detention is exceedingly complex and has changed over time. Below, we offer a broad overview of the current legal and policy framework that governs basic aspects of immigration detention in the United States. More specifically, our overview focuses on issues relating to which classes of noncitizens may be detained, the locations where they may be held, and the conditions of their confinement.

A number of provisions of the Immigration and Nationality Act (INA) grant immigration officials the power to detain noncitizens for the purposes of immigration enforcement.[34] First, under INA section236(a), “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”[35] Because of the permissive language of “may” used in this provision, section236(a) is often referred to as the discretionary detention provision of the INA. Noncitizens detained under this provision may be released on conditional parole (also commonly known as “release on recognizance”) or on a bond of at least $1,500.[36] Noncitizens released under this provision, however, may be rearrested at any time at the discretion of an authorized immigration official.[37]

Second, under what are often referred to as the mandatory detention provisions of the INA, the Attorney General must detain, with limited exceptions,[38] certain classes of noncitizens pending their removal from the United States. These noncitizens include: (1) most “arriving aliens;” (2) noncitizens with certain criminal convictions; (3) suspected terrorists; and (4) noncitizens with final orders of removal.[39] An “arriving alien” generally refers to an “applicant for admission,” such as an individual apprehended at the border or a port of entry.[40] As there are no statutory limits on how long a noncitizen may be detained, and many noncitizens are detained for extended periods of time, prolonged detention has been the focus of ongoing litigation in federal courts.[41]

As to where the detainees may be held, INA section241(g) states: “TheAttorney Generalshall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” This provision further states:

When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, theAttorney Generalmay expend...amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.[42]

One important issue related to where the detainees may be held is whether and when detainees may be transferred from one facility to another. On this question, the federal courts generally have interpreted INA section241(g) as providing the Attorney General broad discretion to transfer the detainees as he or she “deems appropriate.”[43] Thus, noncitizens have been held where they initially were apprehended or transferred to remote and distant facilities, including ones that are outside the jurisdiction of the presiding court. In 2009, a report by the Office of Inspector General concluded that such transfers have led to “errors, delays, and confusion for detainees, their families, and legal representatives.”[44] Around the same time, Human Rights Watch published a report raising serious concerns about the frequent transfers of large numbers of detainees to facilities that were far away from where they lived.[45] In response, ICE informed Human Rights Watch that it intended to minimize transfers.[46] In 2012, ICE released a policy directive restricting detainee transfers to only those deemed to be “necessary” under a specific set of circumstances.[47] In practice, legal advocates continue to report that “often ICE does not follow its policy memorandum and instead bases the location of detention on bed space availability.”[48]

As to the type of detention facilities used by ICE, the DHS recognized in 2009 that most immigrant detainees were confined in facilities that were “either jails operated by county authorities or detention centers operated by private contractors.”[49] The DHS also recognized that these facilities werelargely designed for penal, not civil, detention.”[50] The DHS announced an overhaul of this system with the creation of the Office of Detention Policy and Planning (ODPP). The announcement stated that ICE would move away from its reliance on penal institutions to confine immigrant detainees and instead, design “a new civil detention system.”[51]

In 2016, in the aftermath of the DOJ’s decision to phase out private forprofit prisons from the federal correctional system,[52] the Homeland Security Advisory Council considered whether the same phase-out ought to be implemented in the immigration detention system.[53] The Advisory Council’s report, however, concluded: “Fiscal considerations, combined with the need for realistic capacity to handle sudden increases in detention, indicate that DHS’s use of private for-profit detention will continue.”[54] This conclusion was the subject of a contentious debate among the Council members, resulting in almost three-fourths of the Council members concurring with one Council member’s view that the federal government should take a “measured but deliberate shift away from the private prison model.”[55]

The treatment of detainees and their conditions of confinement are governed by a number of different ICE detention standards. Three versions of the standards are currently in use across various facilities throughout the United States, depending on the type of facility and the terms of the facilities’ respective contracts with ICE.[56] These standards include the 2000 National Detention Standards (NDS), and the 2008 and 2011 Performance-Based National Detention Standards (PBNDS).[57] None of these standards are legally enforceable regulations. As the U.S. Commission on Civil Rights has concluded, the nonbinding nature of these standards often means that the “facilities are not held accountable when they fail to maintain or meet these standards—at times with tragic results.”[58]

A detailed review of the specific issues related to the conditions of confinement and the treatment of detainees is beyond the scope of this Article. As we noted earlier, however, these issues are manifold, ongoing, and broad ranging. The Office of the Inspector General underscored this point in reaching the following conclusion in its December 2017 report based on its unannounced inspections of several detention facilities: “Overall, the problems we identified undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.”[59]

C.Research on Detention

The existing research on immigration detention offers another important context for our empirical analysis. The extant body of research is varied in approach and wide-ranging in focus. A longstanding body of legal scholarship has analyzed statutory, constitutional, doctrinal, and policy issues related to immigration detention, particularly mandatory detention.[60] Complementing this legal scholarship is a relatively small, but growing, body of scholarship from multiple disciplines that illuminates the history, politics, and social realities of immigration detention.[61] Finally, there is a nascent body of socio-legal scholarship that brings empirical analysis to bear upon legal and policy issues related to immigration detention.[62]

A number of themes have emerged as focal points of inquiry across these related albeit disparate bodies of research. Here, we focus on the research on the political economy of detention. By political economy, we mean the confluence of political and economic forces that determine the emergence, location, and the locus of governance and power over the immigration detention infrastructure. An important point of inquiry in this area of research has been the increasing privatization of immigration enforcement, which involves the delegation of enforcement powers—a traditional government function—to private actors.

That detention has become a core topic of investigation for researchers concerned with the privatization of immigration enforcement is unsurprising, given the expanded role of for-profit companies in the construction and operation of immigration detention facilities across the United States.[63] Due largely to data limitations, evidence is mixed on the precise role of privatized detention in shaping detention experiences and outcomes. On the one hand, Jennifer Chacón, in her recent analysis of the critiques of privatized detention, has concluded that currently, systematic evidence is lacking on whether detainees are worse off in privately operated facilities compared to public facilities.[64] On the other hand, Denise Gilman and Luis Romero have argued that privatization fuels profit-seeking dynamics that distort decisions regarding whether to detain, where to detain, and for how long.[65]

Research on the political economy of detention has also focused on the centrality of geopolitics in structuring detention experiences and outcomes. Alison Mountz, for example, has argued that the practice of holding detainees in remote locations that are outside and distant from urban areas leads to separation from family, community, and legal support networks that are critical to the detainees’ chances of achieving favorable case outcomes.[66] Furthermore, Lauren Martin has argued that ICE “is acutely aware of detainees’ relationships to surrounding communities,” and considers proximity to such communities and their supporting institutions as a negative trait in selecting detention sites.[67]

Taken together, the foregoing discussion of the key themes in detention law, policies, and research raises fundamental questions about who the detainees are, where they are held, and what happens to them once they are detained. We now turn to our analysis in which we investigate these issues using a national dataset on individuals held in immigration detention by ICE during fiscal year 2015.

II.The Current Study

A.Data

We compiled a number of datasets for this study. Together, these datasets represent the most comprehensive national-level data to date on U.S. immigration detention. We discuss each of these data sources and their limitations, followed by a brief discussion of our analytical strategy.

1.Detention Data

The primary dataset consists of individual-level longitudinal data on each individual, including juveniles, detained by ICE during fiscal year 2015 (Detention Data).[68] TRAC obtained the Detention Data from ICE with public records requests. To our knowledge, 2015 is the latest and the only fiscal year that the federal government has released individual-level data of this kind on immigration detention.[69] TRAC is currently awaiting ICE’s response to its request for more recent detention data.

For each detainee, ICE generated a new record each time the detainee was booked into a facility. We treat each record as a new “stint” in detention. If an individual had been booked into a facility only once during the course of his detention, that detainee would have only one record pertaining to that detention stint. On the other hand, if an individual had been booked into a facility, subsequently transferred to another facility, and then released from the second facility on parole, that detainee would have a total of two records pertaining to two detention stints. The first record would have the release reason (Release Type variable in the Detention Data) of “transferred,” and the second record would have the release reason of “paroled.”

To be included in the Detention Data, the individual must have been detained at some point during fiscal year 2015, but his or her detention need not have begun nor ended in fiscal year 2015. For individuals who entered detention before fiscal year 2015, some of their records in the Detention Data pre-date fiscal year 2015. For individuals whose detention continued beyond fiscal year 2015, we do not observe what happened to them and their records are right censored. A total of 38,796 records are right censored in the Detention Data.

We undertook a number of steps to clean and prepare the data for analysis, including deleting duplicate or redundant records. The Methods Appendix describes each of these steps. Our data cleaning and preparation resulted in 734,709 records pertaining to 355,729 detainees, including juveniles and adults, and 679 detention facilities.[70] For each detention facility in the Detention Data, we collected information from a number of sources to determine the facility’s address and whether the facility was operated by a private for-profit company. The Methods Appendix contains detailed information on our coding process.

2.Geocoded Data

We generated a geocoded dataset specifically for the purposes of this study (Geocoded Data). To create this dataset, we compiled and merged three distinct record sets. The first set of records consists of a comprehensive list of facility dyads that we produced, with each dyad consisting of pairings of all facilities involved in inter-facility transfers.

The second set of records pertains to the metropolitan statistical areas (MSAs) and their principal cities. The U.S. Office of Management and Budget (OMB) defines MSAs as consisting of “at least one urbanized area that has a population of at least 50,000.”[71] About 85% of the U.S. population live in MSAs.[72] Given the expansive coverage of MSAs, we sought a narrower definition of major urban areas for the purposes of this study. The largest city in each MSA is called a principal city.[73] According to the OMB, principal cities constitute “the more significant places in each [MSA]...in terms of population and employment.”[74] Thus, we define major urban areas in this study as the principal cities in MSAs.[75]

The third set of records pertains to immigration attorneys who are members of the American Immigration Lawyers Association (AILA). AILA is a national association of attorneys who practice or teach immigration law. AILA was founded in 1947 and currently has more than 15,000 members. The AILA membership data contains information on attorneys in wide-ranging practice settings, including law firms of various sizes, nonprofit organizations, and law schools. We geocoded the office addresses of all attorneys who were active members of AILA during fiscal year 2015 and whose practice area included removal defense. Given that many immigrants often lack resources to hire private attorneys, this study focuses on AILA attorneys who work at legal services/nonprofit organizations or law schools.

We also collected and coded information pertaining to the accredited representatives in the Executive Office for Immigration Review’s (EOIR) Recognition and Accreditation Program.[76] The EOIR, under the jurisdiction of the DOJ, oversees the immigration courts. The accredited representatives in the Recognition and Accreditation Program can assist noncitizens in immigration proceedings.[77]

We geocoded the addresses found in each record set discussed above to convert the addresses into geocoordinates. Using these geocoordinates, we produced the following measures: (1) driving distance between each detention facility and the nearest principal city within an MSA; (2)driving distance between each detention facility and the nearest nonprofit immigration attorney and the nearest EOIR accredited representative; and (3)driving distance between the facilities involved in inter-facility transfers. Of note, many geographic studies use straight-line distance measures instead of driving distance measures. This practice arose largely due to the relative ease of calculating straight-line distances, rather than due to any substantive reasons.[78] In the Methods Appendix, we describe the basic difference between these two types of distance measures and explain why the use of driving distance is more appropriate for this study.

3.Grievance Data

The third dataset we analyze consists of calls that the ICE Office of Enforcement and Removal Operations’ (ERO) Detention Reporting and Information Line (DRIL) received from detainees and community members during fiscal year 2015 that relate to specific detention facilities.[79] Human Rights Watch obtained these records from ICE pursuant to a FOIA request. The records request stated: “HRW requests information relating to the incidence of and response to all complaints or grievances with regards to the complainant or another individual, in ICE detention facilities from fiscal year 2013 through the present.” In light of this request language, we treat the calls as a measure of facility-related grievances in this study.

The original data relating to grievances that Human Rights Watch received from ICE contained a total of 48,849 grievances pertaining to specific detention facilities. Matching these facilities to the facilities in the Detention Data and restricting the sample to only those facilities used by ICE in fiscal year 2015 produced 47,145 grievances pertaining to 304 facilities.

The DRIL initiative, launched in September of 2012, is “a toll-free service that provides a direct channel for agency stakeholders to communicate directly with ERO to answer questions and resolve concerns.”[80] Stakeholders include “individuals in ICE custody, the public, nongovernmental organizations, faith-based organizations, academic institutions, attorneys, and advocacy groups.”[81] In the summary information accompanying its records production to Human Rights Watch, ICE noted that DRIL “does not directly investigate complaints nor does it provide outcomes for investigated complaints.” However, “[s]ome of the call concerns (complaints) are routed to field offices for review.” In addition, “[a] small number of calls are routed to the ICE Office of Professional Responsibility for assessment and possible investigation.”

It is important to note that DRIL is only one mechanism through which detainees and community members can report grievances related to detention facilities.[82] Nonetheless, DRIL is an important source of information on facility-related grievances given that detainees may be more likely to be aware of its existence than other reporting mechanisms. For example, ICE has created an information poster for distribution to detention facilities that contains DRIL contact information for reporting concerns.[83] A more comprehensive analysis of all grievances is difficult, if not impossible, for the reasons that we discuss later.

The Grievance Data contains information about the subject matter of the grievances, names of the facilities to which the grievances pertain, and the number of grievances per facility. ICE classified the subject matters of the grievances into the following broad categories: (1)calls related to physical and/or sexual abuse; (2)calls related to serious mental disorder or condition; (3)calls related to separation from minor child or other dependent or parental related issues; and (4)calls related to any other category. The Grievance Data contains information at the level of facilities, rather than at the level of individual detainees.

B.Analytical Approach

We begin our analysis by examining descriptive statistics on the detainee characteristics, detention facility characteristics, and detention outcomes. We then examine each of the three major detention outcomes of interest in this study: detention length, inter-facility transfers, and grievances. As we describe below, our analysis of detention outcomes primarily focuses on adult detainees given that juveniles are situated differently in the detention system.[84]

We first examine various bivariate relationships, such as the relationship between confinement in a privately operated facility and detention length. We then assess whether the bivariate patterns we find are robust to the inclusion of various covariates by conducting multivariate regression analyses. For our multivariate regression analyses of detention length, we use parametric survival models based on the Weibull distribution. For the multivariate regression analyses of transfers, we use parametric survival models based on the lognormal distribution. We selected Weibull and lognormal models based on a series of tests of model fit.[85] We fit the Weibull and lognormal models, respectively, in the accelerated failure-time metric (AFT) rather than in the hazard rate metric. The AFT model takes the form:

log(T) =β0 + β1x1++βpxp+log(ε),

(1)

in which Tis the time-to-event (thefailure time”);x1, ... ,xp are predictor variables with β regression coefficients; ε is the error term. In the detention-length analysis, the “failure” or the event of interest is obtaining release from detention. In the transfer analysis, the “failure” or the event of interest is experiencing a transfer.

For our multivariate regression analyses of grievances, we use negative binomial models. Negative binomial regression belongs to a family of generalized linear models in which the dependent variableis a count of the number of times an event occurs.[86] The negative binomial model takes the form:

log λi = β0 + β1xi1 + … + βkxik + σεi,

(2)

in which λi is the expected count of grievances for facility i, xi1, ... , xik are the predictor variables at the facility level with β regression coefficients, and εi is the error term.

III.Key Empirical Findings

To understand who the detainees are, where they were held, and what happened to them, we examine: (1)detainee characteristics; (2)facility characteristics; and (3)detention outcomes. Appendix Table A contains a detailed description of all of the measures that we analyze below.

A.Detainee Characteristics

The ICE Detention Data contains records for 355,729 unique individuals. Who are these detainees? To address this question, we examine a number of detainee characteristics, including gender, country of citizenship, age, legal status at the time of last entry into the United States (entry status), and whether ICE classified the individual as an aggravated felon. Table 1 contains summary statistics on each of these characteristics for the entire detained population.

Table 1 shows that men constituted about 79% of the detainee population. In terms of the region of origin,[87] Mexican nationals by themselves made up about 43% of the detainee population, and individuals from the Northern Triangle region of El Salvador, Guatemala, and Honduras, made up about 46% of the detainee population. Together, individuals from Mexico and Northern Triangle regions added up to 89% of the detainee population. Individuals from the rest of Latin America constituted about 5% of the detainee population, followed by individuals from Asia Pacific (3%), Africa (1%), and Europe and North America (together, 1%). Appendix Table B shows the top fifteen countries of citizenship.

Approximately 17% of the population were juveniles (under 18 years old). Adults between the ages 18 to 30 made up the largest segment of the population (42%), followed by adults between the ages 31 to 40 (26%). The population as a whole was relatively young, with mean and median ages of 28.

The ICE Detention Data contains thirty-five entry status categories. These entry status categories refer to the detainees’ legal status at their last entry into the United States. Given the relatively small sizes of many of these categories, we collapsed them into four broad categories of “asylum/refugee,” “lawful permanent resident,” “present without admission,” and “other/unknown.” Table 1 shows that a majority of the detainees were classified as present without admission (65%).

The Detention Data includes information about the detainee’s criminal history, including whether the detainee had convictions that were considered aggravated felonies. As we discussed earlier, an aggravated felony is a legal term of art in immigration law that refers to a growing host of criminal offenses that trigger removal proceedings. Only 1% of the detainee population was classified as having an aggravated felony conviction. The Detention Data also contains information about the detainees “most serious criminal conviction,” if any. Because our analysis suggests that ICE did not capture information on this variable for a large proportion of the detainee population,[88] we do not further analyze this variable.

B.Detention Facility Characteristics

The Detention Data indicates that in fiscal year 2015, ICE used 638 facilities to detain individuals, including juveniles.[89] Of the 638 facilities, 565 were used to detain adults in fiscal year 2015. Where were the 638 facilities located and what were their characteristics? We begin by considering the geographical location of the facilities. As shown in Figure 2, every state in the United States had at least one detention facility. Although not shown in Figure 2, the following U.S. territories also had at least one detention facility: Guam, Puerto Rico, the Northern Mariana Islands, and the Virgin Islands.[90] As shown in Appendix Table C, the top five states in terms of the total number of facilities were: Texas (115 facilities), California (70 facilities), Florida (43 facilities), New York (39 facilities), and Arizona (33 facilities).

Figure 3 shows the total number of detainees held in each state in fiscal year 2015. Figure 3 underscores the relative dominance of southern and southwestern states in terms of the total detainee population. As shown in Appendix Table C, the top five states in terms of the total detainee population were: Texas (192,771 detainees), California (51,162 detainees), Arizona (44,283 detainees), Louisiana (26,481 detainees), and New Mexico (19,927 detainees). Notably, Arizona, Louisiana, and New Mexico had some of the highest levels of detainee populations in fiscal year 2015, yet they maintained relatively fewer total number of facilities compared to Texas and California.

Next, we examine a number of key detention facility characteristics, including whether a given facility is operated by a forprofit company, as well as the facility’s distance to the nearest principal city in an MSA, to the nearest nonprofit immigration attorney, and to the nearest EOIR accredited representative. We also examine the U.S. region in which the facilities are located, and facility type. In Table 2, we summarize these facility characteristics both at the facility level and at the detainee level. The estimates in the “Facility Level” column are the percentages of facilities that fall within a given category. In contrast, estimates in the “Detainee Level” column are the percentages of detainees for whom any of their detention stints fall within a given category.[91]

Table 2 shows that while only about 10% of all facilities were operated by for-profit companies, 67% of detainees had at least one of their detention stints at a privately operated facility. Next, we examine the relative remoteness of the facilities. About 50% of all facilities were located outside of MSA principal cities, and about 64% of detainees had at least one of their detention stints in facilities located outside of MSA principal cities. At the facility level, mean distance to the nearest MSA principal city was about twenty-five miles. The range for the Distance to Nearest MSA variable was substantial: 0 to 278 miles. At the detainee level, Table 2 shows that about 50% of detainees spent at least one detention stint in a facility that was located more than thirty miles away from the nearest MSA principal city.

Another remoteness measure we examine is distance to the nearest nonprofit immigration attorney. At the facility level, mean distance to the nearest nonprofit immigration attorney was about forty-nine miles. Like the Distance to Nearest MSA variable, the range for the Distance to Nearest Nonprofit Attorney variable was also substantial: 0 to 531 miles. At the detainee level, about 58% of detainees spent at least one detention stint in a facility that was located more than thirty miles away from the nearest nonprofit immigration attorney. While the mean distance to the nearest EOIR accredited representative is relatively smaller than the mean distance to the nearest nonprofit immigration attorney, it is important to note that accredited representatives are much more limited in the type of services that they are allowed to provide.

Table 2 shows that both at the facility and at the detainee level, the facilities were heavily concentrated in the South (39% and 67%, respectively). In terms of facility type, facilities with intergovernmental service agreements (IGSAs) constituted the most common type of facilities (43% and 41% at the facility and detainee level, respectively). As we describe in detail in Appendix Table A, IGSAs are agreements between the federal government and a state or local government to provide detention beds in jails, prisons, and other local or state government detention facilities. These facilities are government owned, but they may be operated by either local or state agencies or by a for-profit company.

C.Detention Outcomes

Next, we ask, what happened to the individuals held in detention? To address this question, we consider the following three types of outcomes: detention length, inter-facility transfers, and grievances. As noted earlier, our detention outcome analysis primarily focuses on adult detainees (N=296,703) given that a different set of legal requirements apply for the detention of juveniles.[92] Before examining these three outcomes in depth, however, we first consider whether, to what extent, and on what basis individuals who had been detained in fiscal year 2015 were released from detention. In Figure 4, we show how ICE classified each detainee’s final record by examining the Release Type variable in the Detention Data. For more detailed information on each Release Type, see Appendix Table A.

As shown in Figure 4, the most common release type was Removed, with 62% of the detainees being released from detention due to removal. The next largest category was Temporarily Released, at about 20%. As described in Appendix Table A, this category includes detainees who have been released on their own recognizance, bonded out, released on supervision conditions (for example, reporting requirements) or on other alternatives to detention conditions (for example, electronic ankle monitors). The third largest category was Continued Detention, which includes all individuals who continued to be detained at the end of the fiscal year (about 12%). The last three categories of release are Paroled (about 3%), Granted Relief (about 3%), and Voluntary Departure (0.61%).

In examining detention length and transfers, wherever appropriate we conduct separate analyses for the following major release categories: Removed, Granted Relief, and Temporarily Released. For example, our analysis of detention length explores how much time various comparison groups (for instance, individuals confined in privately operated facilities versus nonprivately operated facilities) spent in detention before being removed, before being granted relief, and before being temporarily released. This subgroup-analysis approach reduces the risk that our findings might be confounded by fundamental dissimilarities across individuals who experienced different types of releases.

1.Detention Length

We first examine detention length among the individuals who were released in fiscal year 2015. We noted earlier that 38,796 records pertaining to adults and juveniles are right censored in the Detention Data. For adult detainees, 35,683 records are right censored. These right-censored records pertain to individuals who continued to be detained at the end of fiscal year 2015. As we do not know how long these individuals’ time in detention lasted, we excluded them in our calculation of detention lengths shown in Figure 5. In effect, the estimates shown in Figure 5 relate to all adult detainees who were released in fiscal year 2015.

Figure 5 shows that about 17% of adult detainees who were released in fiscal year 2015 were released on the same day as their initial book-in. But many—about one-third of the adult detainees—were detained for more than thirty days. The average detention length was about thirty-eight days. Notably, the maximum value for this variable is 2,943 days, indicating that one detainee was detained for over eight years before being released in fiscal year 2015. This detainee was not alone in experiencing years of detention. For example, 1,800 adults who were released in fiscal year 2015 were detained between one to two years; another 273 adults were detained between two to three years, and 117 adults were detained more than three years, before being released in fiscal year 2015.

Next, we consider whether there are significant differences in the average detention length across the key detention facility characteristics that we discussed earlier: the type of facility operator (privately operated vs nonprivately operated) and the location of the facility (within or outside of MSA principal cities). We conduct these bivariate tests separately for each of the three key release categories of interest: Removed, Granted Relief, and Temporarily Released.

To calculate the average detention length shown in Figure 6, we use the following approach: Within each major release category, we calculate the total number of detention days spent in privately operated (nonprivately operated) facilities. We then divide that total by the total number of detainees who ever spent time in privately operated (nonprivately operated) facilities. We follow the same approach in calculating the average detention length by facility location shown in Figure 7.

First, we note that the Granted Relief category has the highest average detention length (about sixty-eight days), followed by Temporarily Released (about fifty-five days), and Removed (about thirty-two days) (not shown in Figure 6). Second, as shown in Figure 6, there are substantial differences in the average detention length across privately operated and nonprivately operated facilities. Third, as shown in Figure 7, there are also substantial differences in the average detention length across facilities that are located in MSA principal cities versus those that are located outside of MSA principal cities. Specifically, detention length is consistently and substantially higher in privately operated facilities (than in nonprivately operated facilities), and in facilities located outside of MSA principal cities (than in facilities located within MSA principal cities).

To test the robustness of these findings, we conduct regression analyses of detention length that control for a variety of relevant potential confounders. These covariates include the following detainee and facility characteristics: (1)gender; (2)region of origin; (3)age at first entry into detention; (4)legal status at the time of last U.S. entry; (5)criminal history; (6)number of inter-facility transfers experienced by a detainee; (7)miles to the nearest nonprofit immigration attorney; and (8)regional location of facilities.

The regression results shown in Table 3 are based on Weibull models that we discussed earlier, and we undertake separate analyses for each major release type: Removed, Granted Relief, and Temporarily Released. The coefficients in the Weibull models we present below can be interpreted as a percent change in the expected “failure time” (in this study, detention length) with every unit increase in the independent variable, holding all other covariates in the model constant.

Our regression results are consistent with those we found in Figures 6 and 7. In each of the three release categories, being confined in privately operated facilities is associated with longer detention. For example, among those who were removed, confinement in a privately operated facility is associated with an 82% increase in days to release (100x[exp(0.60)-1] = 82.21). The same is true of confinement in a facility located outside of an MSA principal city. These patterns of results are even more pronounced for those who were granted relief and those who were temporarily released.

Some observers might ask whether these findings suggest that ICE is merely placing individuals who are likely to be detained longer into privately operated facilities, and into facilities that are located outside of major urban areas. These placement decisions may occur at the initial sorting point or at subsequent inter-facility transfers. Such a decisionmaking process would result in a pattern of detention length that would be consistent with our findings. Central to this account is the assumption that ICE is systematically and reliably predicting which detainees are likely to turn out to be long-term detainees. Our data does not allow us to formally test this possible explanation. However, at least two features of our analyses cast doubt on the validity of this account’s central assumption.

First, our findings hold across various subgroups of release categories (Removed, Granted, and Temporarily Released categories). This means that the foregoing account requires ICE to be making relatively nuanced and ongoing assessments about each detainee’s legal case—beyond mere assessments about which detainee is likely to be eventually removed, granted relief, or temporarily released. Second, our findings are robust controlling for a variety of detainee-background characteristics (see Table 3) that might confound the relationship between detention length and facility operator, and between detention length and facility location, respectively. These findings suggest that for ICE to be systematically predicting with relative accuracy which detainees will turn out to be long-term detainees, ICE must be relying on a more complex set of factors beyond these core detainee-background characteristics. Both scenarios above require us to assume a great deal about ICE’s prediction and sorting process.

Another possible explanation for the positive relationship between detention length and confinement in privately operated facilities, and confinement in facilities located outside of major urban areas, respectively, relates to the size of such facilities. Privately operated facilities tend to detain a substantially higher number of individuals on average than nonprivately operated facilities. The same is true of facilities located outside of major urban areas compared to facilities located within major urban areas. Geographical concentrations of large detainee populations are likely associated with longer court backlogs, and in turn, longer time to release, all else being equal.

It is also possible that certain conditions of detention in privately operated facilities and facilities located outside of major urban areas are systematically linked to longer detention. For example, insofar as telephone calls are more expensive in privately operated facilities, or visitation is more difficult in facilities located outside of major urban areas, detainees may face greater challenges in obtaining legal counsel or obtaining materials necessary for their court hearings. If so, we might expect detainees in such facilities to seek court continuances at higher rates, leading to longer detention time. Our data do not allow us to test these possible explanations. However, our findings at a minimum call for careful future investigations into whether certain structural or situational aspects of confinement in privately operated facilities and in remote facilities might be lengthening detention.

2.Inter-Facility Transfers

The second detention outcome we analyze is inter-facility transfers. Two important notes about such transfers are in order. First, although transfers can occur for a variety of reasons, the Detention Data does not provide the reasons underlying the transfers. Second, ICE’s 2012 policy directive on transfers defines transfers as the movement of detainees from one Area of Responsibility (AOR) to another.[94] An AOR is “[t]he geographic area of responsibility under the authority of a Field Office Director,”[95] and it can encompass multiple states. For example, the Saint Paul Field Office’s AOR consists of Iowa, Minnesota, Nebraska, North Dakota, and South Dakota.[96] In this study, we do not adopt this narrow definition of transfers.

Instead, we treat a movement as a transfer if ICE assigned a given record the release reason of “transferred” or “U.S. Marshals or other agency.” We refer to these movements as inter-facility transfers in this study for the following reason: ICE assigned each facility in the Detention Data a facility code that ICE has represented as uniquely identifying each facility. During our data preparation stage, we ensured that all consecutive records for any given detainee had a distinct facility code (see the Methods Appendix). In sum, all of the transfers that we analyze in this study involved movements from one location to another that had distinct facility codes.[97]

First, we examine the prevalence of transfers. Because we cannot determine the total number of transfers for the individuals who continued to be detained at the end of fiscal year 2015, we excluded these individuals in calculating the number of transfers shown in Figure 8. As we note in Figure 8, the average number of transfers that these individuals experienced before release is a little more than one, but the range is wide: 0 to 51. Figure 8 shows that about 27% of these individuals experienced one transfer, about 15% experienced two transfers, and about 12% experienced three or more transfers. This means that about 54% of adults released in fiscal year 2015 experienced at least one transfer during their detention.

It is also illuminating to consider the type of transfers that the detainees experienced. As shown in Table 4, we coded each transfer in the Detention Data as intercity, interstate, or intercircuit. Intercity transfers refer to transfers between detention facilities that are located in different cities. Interstate transfers refer to transfers between different states. Intercircuit transfers refer to transfers between different federal judicial circuits.

All of these different types of transfers can negatively impact detainees and their legal cases. For example, transfers can sever the detainees’ familial and social contacts (in and outside the facilities where they are held), disrupt the continuity of their medical care and legal representation, and interfere with their efforts to navigate the legal system more generally.[98] In addition to these issues, however, intercircuit transfers may impose special challenges to detainees because such transfers can mean changes in the controlling law that governs the detainees’ immigration case.[99] Nancy Morawetz, for example, has shown that the government’s decision to transfer detainees to certain jurisdictions can “greatly increase[] the chances that the individual will be deported prior to any substantive review of the case.”[100]

According to Table 4, 177,402 adults (which constitutes about 60% of 296,703 adults detained during fiscal year 2015) experienced at least one transfer. Collectively, these individuals experienced 353,704 transfers. Table 4 also shows that at the detainee level, about 86% of adult detainees who had at least one transfer experienced an intercity transfer, about 37% experienced an interstate transfer, and about 29% experienced an intercircuit transfer. At the transfer level, about 89% of all transfers were intercity transfers, about 28% were interstate transfers, and about 19% were intercircuit transfers.

Another way of examining the transfers is to consider the distance between the facilities involved. Figure 9 reports the mean and median driving distances pertaining to various transfer types. The smallest means and medians involve intercity transfers. Figure 9 shows that for intercity transfers, the mean is about 297 miles and the median is about 116 miles. The largest means and medians across different transfer types involve intercircuit transfers. Figure 9 shows that the mean for intercircuit transfers is substantialabout 820 miles. The median for intercircuit transfers is a little less than the meanabout 716 miles.

Are transfer risks associated with confinement in particular types of facilities? To address this question, we begin by examining the average number of transfers by the facility characteristics of interest in this study. Figure 10 shows the average number of transfers by the type of facility operator. Figure 11 shows the average number of transfers by the location of the facility. As before, we calculate these averages separately for each major release category of Removed, Granted Relief, and Temporarily Released.

To calculate the average number of transfers shown in Figures 10 and 11, we follow the same approach that we use in calculating the average detention lengths shown in Figures 6 and 7. For example, within each major release category, we calculate the total number of transfers out of privately operated (nonprivately operated) facilities. We then divide that total by the total number of detainees who ever spent time in privately operated (non privately operated) facilities.

Figures 10 and 11 generally indicate that transfers are more prevalent among nonprivately operated facilities compared to privately operated facilities. The same is true of facilities located within MSA principal cities compared to those located outside of MSA principal cities, at least with respect to the Removed and the Temporarily Released categories. We test the robustness of these findings by estimating a set of survival models that predict the expected time to transfer, holding a number of covariates constant.

Table 5 shows that across each release category, there is a positive relationship between confinement in privately operated facilities and the expected days to transfer. Consider the results for the Removed category: Among the detainees who were eventually removed, confinement in a privately operated facility extends the expected days to transfer by about ninety-six times (exp(4.56) = 95.58), compared to being confined in a nonprivately operated facility.

Likewise, Table 5 shows that across each release category, there is a positive relationship between confinement in facilities located outside of MSA principal cities and the expected days to transfer. For example, for the detainees who were eventually removed, confinement in a facility located outside of an MSA principal city extends the expected days to transfer by about four times (exp(1.32) = 3.74), compared to being confined in a facility located within an MSA principal city.

Another way to think about these results is that detainees in privately operated facilities, and in facilities located outside of MSA principal cities, respectively, are expected to experience transfers at a significantly slower rate, holding all other covariates in the model constant. The slower the failure process, the lower the risk of the expected event (in this case, transfers), all else being equal.

According to a 2009 Human Rights Watch report, “the majority of detainee transfers originate from the patchwork of local prisons and jails operating under IGSA contracts with ICE.”[102] But that finding does not shed light on the question raised by our analysis results—namely, why does confinement in privately operated facilities, and facilities located outside of major urban areas, respectively, lower transfer risks?

The most direct evidence relevant to addressing this question is information regarding the specific reasons for the transfers. There are many different reasons why detainees may be transferred. The policy directive issued by ICE in 2012, for example, enumerates a series of officially sanctioned reasons, including reasons related to “medical or mental health care to the detainee,” the “safety and security of the detainee, other detainees, detention personnel or any ICE employee,” and the “detainee’s individual circumstances and risk factors.”[103] Advocates and researchers have reported a variety of other reasons for transfers, including retaliation against detainees for speaking up or organizing.[104]

To our knowledge, ICE does not maintain electronic records of why any given detainee is transferred.[105] This critical gap in data on transfers prevents us from further analyzing the pattern of relationships that we uncovered in this study. However, one possible reason why transfer risks may be comparatively lower for privately operated facilities and facilities located outside of major urban areas might be that these facilities generally tend to have greater bed space capacities.[106]

Such a possibility, even if empirically supported, does not favor the continued maintenance and construction of facilities with large bed space capacities. The research on the prison industrial complex has long documented the perverse incentives for incarceration generated by the expansion of prisons into communities whose local economies become reliant on the operation and profitability of those prisons.[107] We do argue, however, that a data-driven understanding of the disparities in transfer risks across various facility types is a critical first step in developing policies to reduce the prevalence of transfers and to mitigate their resulting harm.

3.Grievances

Finally, we examine the type and prevalence of grievances in facilities. The Grievance Data contains a total of 47,145 grievances relating to 304 of the detention facilities used by ICE in fiscal year 2015. We begin by considering the prevalence of different types of grievances. Next, we aggregate these various types of grievances to generate a total count of all grievances for each facility.

Two important caveats are in order before we begin. First, we underscore again that the grievances we analyze in this study are likely only a small fraction of all issues and incidents experienced or reported by detainees. Second, ICE’s records production to Human Rights Watch did not include definitions of the grievance types. Nor did ICE provide any explanations of how ICE classified the grievances into the various categories included in its records production. We recognize that some of the category labels used by ICE (see, for example, the “Serious or Unresolved Problem in Detention” category in Table 6) are broad and ambiguous. We also recognize that some of the categories may undercount certain kinds of grievances if those grievances were inconsistently classified. For example, grievances relating to barriers to communication with legal counsel may have been classified into the “Telephone Access” category or the “Visitation” category instead of the “Access to Counsel” category (see Table 6). For these reasons, we examine only the total count of grievances in our regression analysis.

To begin, we note that the Grievance Data contains a total of 31,417 grievances that relate to the following two categories: “Access to Legal Counsel” and “Basic Immigration Case Information.” Together, these categories concerning issues relating to access to legal representation and basic legal knowledge constitute about two-thirds of all grievances in the Grievance Data.

Table 6 contains a comprehensive list of all grievance categories as provided by ICE in its records production to Human Rights Watch. We examine the grievance statistics by type of facility operator and facility location, respectively. The statistics shown under the Type of Operation column indicate the average number of grievances (for any given grievance type) pertaining to the privately operated facilities versus those that are not privately operated. The estimates shown under the Facility Location column indicate the average number of grievances (for any given grievance type) pertaining to the facilities located within MSA principal cities versus those located outside of MSA principal cities.

For example, under the column heading, Type of Operation, Table 6 shows that privately operated facilities had an average of 2.89 grievances involving access to legal counsel. In contrast, nonprivately operated facilities had an average of 0.26 grievances involving access to legal counsel. Under the column heading, Facility Location, Table 6 also shows that while facilities located within MSA principal cities had an average of 0.48 grievances involving access to legal counsel, facilities located outside of MSA principal cities had an average of 0.97 such grievances.

The overall pattern of results presented in Table 6 is similar for privately operated facilities and facilities that are located outside of MSA principal cities. In short, privately operated facilities and facilities located outside of MSA principal cities generally had a substantially higher number of grievances across almost all grievance types. In Figure 12, we show the average number of all grievances (the sum of individual grievance types) by the type of facility operator and facility location. The results are consistent with the general pattern we observed when we considered the average number of individual grievance types in Table 6. Specifically, Figure 12 shows a substantially higher overall number of grievances against privately operated facilities and facilities located outside of MSA principal cities.

To assess whether these results are robust controlling for various potential confounders, we estimate multivariate negative binomial models. In these negative binomial models, the dependent variable is the total number of grievances. The covariates in these models include: (1) Proportion Male (the proportion of detainees confined in any given facility during fiscal year 2015 who were male); (2) Proportion Mexican (the proportion of detainees confined in any given facility during fiscal year 2015 who were of Mexican origin); (3) Total Detainee Population (the total number of detainees confined in a given facility during fiscal year 2015); (4) Average Detention Stint (the average length of detention stints (in days) in a given facility in fiscal year 2015); and (5) Juvenile Facility (whether or not the facility is a juvenile facility).

The results of these negative binomial regressions are shown in Table 7. Model 2 shows that that privately operated facilities are expected to have about 175% more grievances than nonprivately operated facilities, holding all other covariates in the model constant (100x[exp(1.01)-1]=174.56). Facilities located outside of MSA principal cities are expected to have about 51% more grievances than facilities located within MSA principal cities, holding all other covariates in the model constant (100x[exp(0.41)-1]
=50.68).

What might explain the disparities in grievance counts? If it were systematically easier to express grievances or submit grievances in privately operated facilities and facilities located outside of MSAs, grievance counts would be higher in such facilities, all else being equal. Yet a consideration of certain basic features of these facilities suggest that detainees might face equally burdensome, if not higher, barriers to filing complaints or grievances in these facilities. Research suggests that isolation—which is intrinsically exacerbated in remotely located facilities removed from community networks—can impair detainees’ cognitive and emotional functions, deprive them of their sense of agency, and prevent them from obtaining knowledge about their rights.[108] Reports also suggest that privately operated facilities are more likely to lack transparency and public accountability.[109] Transparency and accountability, in turn, are two basic institutional features that might be associated with open and responsive management.

The foregoing discussion focuses on whether detainees in different types of facilities may face different levels and types of challenges in submitting complaints and grievances. However, another possible explanation that requires empirical scrutiny in future research is whether and to what extent there may be differences in actual conditions of confinement that underlie disparities in grievance counts.[110] In the criminal justice context, the DOJ’s latest review of correctional facilities in 2016 found that private contract-operated prisons had a worse record on most safety and security measures, relative to comparable facilities operated by the Federal Bureau of Prisons.[111] This finding was important in the then-Deputy Attorney General Sally Yates’s decision to phase out private contracts.[112] To our knowledge, no such systematic comparative assessments exist in the immigration detention context.[113] Our findings thus provide an important starting point and foundation for future investigations on this critical issue.

Conclusion

Our analyses revealed a number of important patterns and significant findings. The bulk of the detained population consisted of men, and individuals from Mexico, followed by El Salvador, Guatemala, and Honduras. Together, these four countries constituted 89% of the detainee population. About 17% of the population consisted of juveniles. During fiscal year 2015, the detainees were held in a total of 638 facilities. Every state and a number of U.S. territories had at least one such facility in fiscal year 2015. While only 10% of these facilities were operated by for-profit companies, about 67% of the detainees had at least one of their detention stints at a privately operated facility.

About 50% of facilities used by ICE in fiscal year 2015 were located outside of major urban areas, and about 64% of detainees had at least one of their detention stints at such facilities. We also find that about 50% of detainees spent at least one detention stint in a facility that was located more than thirty miles away from the nearest major urban area. In addition, about 58% of detainees spent at least one detention stint in a facility that was more than thirty miles away from the nearest nonprofit immigration attorney. Taken together, these measures indicate that many detainees are confined in locations that are relatively far from community support structures and legal advocacy networks.

We also find that many detainees experienced inter-facility transfers. About 60% of adults detained during fiscal year 2015 experienced at least one transfer during their detention. About 89% of those transfers were intercity, about 28% were interstate, and about 19% involved intercircuit transfers.

These findings have important implications for not only the wellbeing of the detainees, but also for their rights to due process. For example, there is now a movement underway in many cities and states across the United States to promote greater access to legal representation for detainees.[114] Yet such efforts are likely to be hampered in fundamental ways by the remote location of many facilities and the frequent transfer of detainees across long distances. As the Office of Inspector General has emphasized: “When ICE transfers detainees far from where they were originally detained, their legal counsel may request a release from representation because the distance and travel time or cost make representation impractical.”[115] These challenges and disruptions not only create hardships for individual detainees, but they also have ripple effects throughout the legal system, as “[d]ifficulty arranging for counsel or accessing evidence may result in delayed court proceedings.”[116]

Our analyses also identified notable patterns with respect to detention outcomes. We find that confinement in privately operated facilities is associated with significantly longer detention. The same is true of facilities located outside of major urban areas. Our analyses also show that privately operated facilities and facilities located outside of major urban areas have substantially higher counts of grievances. On the other hand, transfer risks are relatively lower in privately operated facilities and in facilities located outside of major urban areas.

We do not argue that the bivariate relationships that we found between the various detention outcomes and detention facility characteristics of interest (privately operated versus nonprivately operated; location within MSA principal cities versus outside of MSA principal cities) are causal in nature. Whenever possible, we conducted subgroup analyses and multivariate regression analyses to control for possible confounders. Yet without knowing the assignment process of detainees to different facilities, it is difficult to draw direct causal inferences.

Nonetheless, our findings highlight the need for a careful consideration of certain basic facility characteristics in facility monitoring and reform efforts.[117] For example, privately operated facilities and facilities located in remote areas may warrant a heightened scrutiny with respect to various detention outcomes. This is all the more so because these types of facilities traditionally have been relatively less transparent and less accountable to the public. Consider, for example, a long-running FOIA litigation in which Detention Watch Network and the Center for Constitutional Rights sought records from ICE relating to immigration detention practices.[118] When the district court ordered the release of documents, the government chose not to appeal. However, two private prison corporations, the GEO Group and CoreCivic, intervened to stop the release of documents and filed an appeal of the court’s decision.[119]

This study also underscores the urgent need for the government to engage in more systematic and comprehensive data collection with respect to immigration detention and to make such data widely available to researchers and the public. Importantly, any such data collection effort must be attentive to challenges that arise uniquely in detention settings. For example, underreporting of grievances is likely a serious problem given the current grievance system established by the ICE detention standards. According to a recent government report, “ICE detention standards and guidance call for informal resolution of detainee complaints through oral communication with ICE facility or contractor staff or medical personnel as appropriate.”[120] Yet according to detainees, “staff obstructed or delayed their grievances or intimidated them, through fear of retaliation, into not complaining.”[121] The report continued, “[t]hese deterrents may prevent detainees from filing grievances about serious concerns that should be addressed and resolved.”[122]

Despite these challenges, investigating detention experiences and outcomes remains a critical task in light of the ongoing humanitarian and legal concerns raised by immigration detention in the United States. In a recent decision granting the habeas petition of Ravi Ragbir, a long-time New York resident and an immigrant rights activist,[123] U.S. District Judge Katherine Forrest wrote:

[T]he process we have employed has...been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and find it unusual. That is, that a man we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell. All of this without any showing, or belief by ICE that there is any need to show, that he would not have left on his own if simply told to do so; there has been no showing or even intimation that he would have fled or hidden to avoid leaving as directed. And certainly there has been no showing that he has not conducted himself lawfully for years.[124]

In requiring Ragbir’s release from immigration detention, Judge Forrest concluded: “Taking such a man, and there are many such men and women like him, and subjecting him to what is rightfully understood as no different or better than penal detention, is certainly cruel. We as a country need and must not act so. The Constitution commands better.”[125]

APPENDIX TABLES

 

 


Methods Appendix

A.  Detention Data Preparation

To aid in our description of the Detention Data’s basic data structure, we constructed an example set of records pertaining to a single detainee (see Appendix Table D). The Initial Book-In Date is the date the detainee first came into ICE custody. The Book-In Date and the Release Date, respectively, refer to the date that the detainee was booked into and released from a given facility. The Release Type contains information about what happened to the detainee at the end of each record or detention stint. We discuss the Begin Time and End Time variables in the next Section.

 

We treated the records that share the same Initial Book-In Date as constituting a single “custody period.” Appendix Table D shows that the detainee had two custody periods. The first custody period consists of Records 1 through 3. The second custody period consists of Records 4 and 5. We prepared the Detention Data for analysis by taking the following steps to address any errors in ordering and issues related to duplicate or overlapping records. First, we ordered the records by sorting on the unique identification number associated with each detainee, Initial Book-In Date, Book-In Date, Release Date, Release Type, and Facility Code. The Facility Code is the unique identifier that ICE assigns to each facility.

Second, we identified and adjusted the records with overlapping information, and we removed the records that contained duplicate information. For example, if a given record contained Book-In and Release Dates that were entirely nested within the immediately preceding record, and the two records shared the same Facility Code, we dropped the nested record (the record with the smaller date range).

 

B.  Gaps in Custody Periods and Detention Stints

In Appendix Table D, we purposely inserted gaps in dates across some of the records in order to illustrate how we addressed some of the analysis issues arising from such gaps. The example in Appendix Table D contains a gap of two days between Records 2 and 3, since Record 2 ends with a Release Date of February 7th and Record 3 begins with a Book-in Date of February 9th. A total of 20,043 such gaps exist in the Detention Data pertaining to about 5% of all detainees and less than 3% of all records. Approximately 91% of these gaps have a duration of one day.

The example in Appendix Table D also contains a gap of two days between the first and second custody periods, since the first custody period ends with a Release Date of February 9th and the second custody period begins with a Book-in Date of February 11th. A total of 772 such gaps exist in the Detention Data pertaining to 0.22% of all detainees and 0.11% of all records. The median for these gaps is five days (the range is 2 to 109 days).

For descriptive analyses involving such measures as the total number of days spent in privately operated facilities and the total number days spent in facilities located outside of MSA principal cities, we excluded these gaps from our analyses since we were unable to observe where the detainees were held during these gap periods. For the survival analyses in Table 3, we counted these gaps as continuing periods of detention in generating our time-to-event measure. Consider the Begin Time and End Time in Appendix Table D. The Begin Time refers to the number of days passed since the Initial Book-In Date at the start of each record. The End Time refers to the number of days passed since the Initial Book-In Date at the end of each record. To treat the gap periods as continuing periods of detention, we calculated the Begin Time and End Time in reference to the Initial Book-In Date of the first custody period regardless of the number of custody periods and regardless of any gaps within and across custody periods.

We tested the robustness of our survival analyses by re-estimating each of our regression models under these varying specifications: (1) excluding the gap periods; (2) excluding the detainees with multiple custody periods; and (3) excluding the gap periods and detainees with multiple custody periods. The results of these robustness checks produced substantially similar results as the results we present in Tables 3 and 5.

C.  Transfers

For any given detainee, the steps that we took to prepare the data (see the Detention Data Preparation Section in the Methods Appendix) ensured that within each custody period, consecutive records contained different Facility Codes. We then coded each record as involving a transfer if a given record’s Release Type was “transferred” or “U.S. Marshals or other agency.” In calculating the total number of transfers, we excluded each detainee’s last record. In effect, we did not treat the last record as involving a transfer even if that record’s Release Type was “transferred” or “U.S. Marshals or other agency,” since in such instances we could not calculate the distance between the originating and receiving facilities.

Although ICE has represented that the Facility Code uniquely identifies each facility, we found sixty-four records pertaining to sixty-one detainees in which two consecutive records in a custody period differed in their Facility Codes but shared the same address. We suspect that these transfers involved movements from one part of a building complex with one facility code, to another part of the same building complex with a different facility code.

D.  Coding Facilities as Privately Operated

We classified detention facilities as privately operated using the following steps. First, we used a list of facilities compiled by the Enforcement and Removal Operations’ Custody Management Division. This list contains information about 208 facilities that were in use during fiscal year 2015, including an indicator of whether any given facility was operated by a private for-profit company (for example, GEO Group), or local government (for example, a county or city sheriff’s department).

Second, we reviewed a set of contracts available in ICE’s FOIA library that pertain to agreements between ICE and private for-profit companies. We then used the Wayback Machine to examine archived versions of the companies’ websites to compile a list of all facilities that the companies operated in fiscal year 2015. Although we recognize that a facility that was privately operated in fiscal year 2015 may not have been privately operated in earlier fiscal years, our coding is time-invariant. A total of 46,202 records (6% of records) pertaining to 23,492 detainees (3% of detainees) in the Detention Data pre-date fiscal year 2015.[126]

E.  Distance Measures

Rather than use a straight-line measure of distance based on changes in latitude and longitude coordinates, we used the distance generated by Google Maps based on driving routes between various points of interest. The advantage of using the driving distance is that by accounting for the existence or nonexistence of roads, freeways, interstates, mountains, bodies of water, and other geographical features of land, we better approximate the actual distance that legal counsel, kin, or advocates would have to travel to reach a given facility.

The use of driving distance, however, poses challenges for measuring distances involving points of interest that are surrounded by seas and oceans. While we can measure the driving distance to the nearest MSA principal city in Oahu, Hawaii and in Puerto Rico because those two islands contain MSA principal cities, we cannot do the same for other U.S. territories and Sitka, Alaska, which do not have MSAs. We thus treat the facilities in latter locations (N=7) as missing on Distance to Nearest MSA. The same problem exists in terms measuring the driving distance to the nearest nonprofit immigration attorney, and the driving distance to the nearest accredited representative. In locations like Sitka, Alaska, where such attorneys or representatives do not exist, crossing a body of water is necessary to reach the nearest attorney or representative. We treat the facilities in these types of locations as missing on Distance to Nearest Nonprofit Attorney (N=16), and Distance to Nearest Accredited Representative (N=14).

To estimate the distance between facilities involved in inter-facility transfers, however, we implemented a different strategy. Because distance measures for inter-facility transfers represent actual distances that detainees were required to travel (whether by air or ground transportation), excluding facilities that are located in territories, Hawaii, and Sitka, Alaska, would result in a significant underestimation of these distances. Thus, we rely on the driving distance wherever driving between a given pair of facilities is possible, and on the Haversine formula (a straight-line distance measure) wherever a transfer necessitates crossing a body of water.

F.  Geocoding Facilities

To obtain latitude and longitude coordinates for the facilities in the Detention Data, we used a multi-pronged approach. First, we matched the facilities in the Detention Data to the facilities in the National Immigrant Justice Center’s ICE detention facility list (NIJC Data), which the NIJC obtained from ICE through a FOIA request.[127] The NIJC Data contains addresses for the facilities included in its list. The matching process allowed us to assign addresses to 521 of the 679 facilities in the Detention Data (77%). We then used the geocode function of R’s ggmap package to assign geocoordinates to each of the 521 facilities.[128]

For the remaining 158 facilities in the Detention Data, we found the city and state in which each facility is located using information included in the TRAC detention facility reports.[129] We then queried Google Maps using the facility name and its city and state. As shown in Appendix Table E (see Google Maps category), we were able to assign geocoordinates to eighty-one additional facilities in the Detention Data (12%) using this method.

To assign geocoordinates for the rest of the facilities in the Detention Data, Google Maps required additional information beyond facility name, city, and state. We compiled the addresses for most of these facilities using the following sources: (1) the yellow page directories; (2) the websites of the nonprofit and forprofit organizations that operated the facilities; (3) the websites of governmental entities, including the Bureau of Prisons, U.S. Marshals Service, and county and city correctional departments; (4) the Global Detention Project website; and (5) the websites of various third party agencies describing or evaluating the facilities.[130] We were able to assign geocoordinates to another 10% of the facilities in the Detention Data using the facility addresses we compiled from these sources (see Yellow Pages, Operating Organization Websites, Government Websites, Global Detention Project Website, and Other Sources categories).

Finally, for the remaining 3% of facilities in the Detention Data for which we could not assign geocoordinates using the above methods, we assigned them geocoordinates that corresponded to the city and state where the facility is located (see City and State Information (TRAC) category). All of these facilities were one of several branches operated by the same nonprofit organizations located within same cities.

 


[*] *..              This research was supported by the Carnegie Corporation of New York and the California Wellness Foundation. The statements made and views expressed are solely the responsibility of the authors. We are grateful to Ben Johnson, Sue Long, Grace Meng, Brian Root, and Tizita Wasihun. We thank Tendayi Achiume, Sameer Ashar, Lenni Benson, Guillermo Cantor, Jennifer Chacón, Ingrid Eagly, Annie Lai, and Jaya Ramji-Nogales for their insightful comments. Kris Coombs, Joanna Cortez Hernández, Danielle Flores, Hilary Olson, and Tiffany Panganiban provided excellent research assistance. We thank the participants of the Criminalizing Immigrants Conference at Cornell University, the UCLA Center for the Study of International Migration Seminar Series, and the Berkeley International Migration and Refugee Law Workshop for providing helpful feedback. Direct all correspondence to Emily Ryo, USC Gould School of Law, 699 Exposition Blvd., Los Angeles, CA 90089. Email: eryo@law.usc.edu.

[†] †.. Associate Professor of Law and Sociology, University of Southern California Gould School of Law.

[‡] ‡.. Ph.D. Candidate in Sociology, University of California, Los Angeles.

 [1]. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

 [2]. McMillan v. Pennsylvania, 477 U.S. 79, 98 n.2 (1986) (“The combination of stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes.”) (internal citation omitted); Vitek v. Jones, 445 U.S. 480, 492 (1980) (“The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.”); Castle v. United States, 399 F.2d 642, 651 n.16 (5th Cir. 1968) (“[I]mprisonment brings not only a financial loss in wages but also the loss of all other advantages and privileges of being at liberty.”).

 [3]. We define immigration detention as a confinement system based on the federal government’s power to hold individuals pending their immigration proceedings. By contrast, criminal incarceration refers to a confinement system based on state or federal government’s authority to hold individuals charged with, or convicted of, a criminal offense. See Dora Schriro, U.S. Dep’t of Homeland Sec., Immigration Detention Overview and Recommendations 4 (2009), https://www.ice.gov/doclib
/about/offices/odpp/pdf/ice-detention-rpt.pdf [https://perma.cc/FC6L-WSH8%5D; Office of the Fed. Det. Tr., Detention Needs Assessment and Baseline Report 4 n.2 (2001), https://www.justice.gov
/archive/ofdt/federal_detention_report_2002.pdf [https://perma.cc/MSW7-2Z2C%5D. Some observers, however, use the term immigration incarceration to refer to immigration detention, in part to highlight the punitive nature and severe consequences of immigration detention. See, e.g., Semuteh Freeman & Lauren Major, Immigration Incarceration: The Expansion and Failed Reform of Immigration Detention in Essex County, NJ (2012), http://www.law.nyu.edu/sites/default/files
/upload_documents/Immigration%20Incarceration.pdf [https://perma.cc/56BD-DXVW%5D; César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 Calif. L. Rev. 1449 (2015); Raha Jorjani, Locked Up: Criminal and Immigration Incarceration in America, Keynote Address (Mar. 16, 2010) in 4 DePaul J. for Soc. Just. 1 (2010).

 [4]. Dora B. Schriro, Improving Conditions of Confinement for Immigrant Detainees: Guideposts Toward a Civil System of Civil Detention, in The New Deportations Delirium: Interdisciplinary Responses 57, 66 (Daniel Kanstroom & M. Brinton Lykes eds., 2015).

 [5]. U.S. Dep’t of Homeland Sec., Fiscal Year 2017 ICE Enforcement and Removal Operations Report 10 (2017), https://www.ice.gov/sites/default/files/documents/Report/2017
/iceEndOfYearFY2017.pdf [https://perma.cc/AJX4-TF3H].

 [6]. See Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

 [7]. Memorandum from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r of U.S. Customs & Border Protection et al. 8–9 (Feb. 20, 2017), https://www.dhs.gov/sites
/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf [https://perma.cc/LVX3-EGMY%5D; Immigration and Customs Enforcement & Customs and Border Protection FY18 Budget Request: Hearing Before the Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 115th Cong. (2017) (statement of Thomas Homan, Acting Director, U.S. Immigration and Customs Enforcement), https://www.dhs.gov/news/2017/06/13
/written-testimony-ice-acting-director-house-appropriations-subcommittee-homeland [https://perma.cc
/Z3RS-MUAD].

 [8]. Caitlin Dickerson, Plan Would Limit Protections for Immigrants Held in Jails, N.Y. Times, Apr. 14, 2017, at A1.

 [9]. See generally, e.g., Am. Civil Liberties Union et al., Fatal Neglect: How ICE Ignores Deaths in Detention (2016), https://www.detentionwatchnetwork.org/sites/default/files/reports/Fatal
%20Neglect%20ACLU-DWN-NIJC.pdf [https://perma.cc/J4VP-NU75]; S. Poverty Law Ctr. et al., Shadow Prisons: Immigrant Detention in the South (2016), https://www.splcenter.org/sites
/default/files/ijp_shadow_prisons_immigrant_detention_report.pdf [https://perma.cc/2GMD-M9RD%5D; Human Rights Watch & Cmty. Initiatives for Visiting Immigrants in Confinement, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention (2017), https://www.hrw.org/sites/default/files/report_pdf/usimmigration0517_web_0.pdf [http://perma.cc
/VQW5-UNMV]; Pa. State Law Ctr. for Immigrants’ Rights Clinic, Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers (2017), https://projectsouth.org/wp-content/uploads
/2017/06/Imprisoned_Justice_Report-1.pdf [https://perma.cc/57ZK-SWEY].

 [10]. For notable exceptions, see generally Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1 (2015) (using data on immigration courts to examine access to counsel in immigration proceedings, including for detained immigrants); Ingrid Eagly et al., Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev. 785 (2018) (using data on immigration courts to examine family detention). For challenges that researchers face in obtaining government data related to immigration detention, see, for example, Transactional Records Access Clearinghouse, Huge Increase in Transfers of ICE Detainees (2009), http://trac.syr.edu/immigration/reports/220/#20 [https://perma.cc/3NXM-2BTB%5D; Donald Kerwin et al., Piecing Together the US Immigrant Detention Puzzle One Night at a Time: An Analysis of All Persons in DHS-ICE Custody on September 22, 2012, 3 J. on Migration & Hum. Security 330, 331–32 (2015).

 [11]. See Libby Rainey, ICE Transfers Immigrants Held in Detention Around the Country to Keep Beds Filled, Denver Post (Sept. 17, 2017), https://www.denverpost.com/2017/09/17/ice-detention-transfers-immigrants [https://perma.cc/L2JS-96WF] (documenting the hardships detainees face as a result of transfers); see also Human Rights Watch, A Costly Move: Far and Frequent Transfers Impede Hearings for Immigrant Detainees in the United States (2011), https://www.hrw.org
/sites/default/files/reports/us0611webwcover_0.pdf [https://perma.cc/LP5F-XZUG%5D (analyzing detainee transfers).

 [12]. See generally Jennifer M. Chacón, Privatized Immigration Enforcement, 52 Harv. C.R.-C.L. L. Rev. 1 (2017) (evaluating privatization in immigration law).

 [13]. See U.S. Dep’t of Homeland Sec., Report of the Subcommittee on Privatized Immigration Detention Facilities 6 (2016), https://www.dhs.gov/sites/default/files/publications
/DHS%20HSAC%20PIDF%20Final%20Report.pdf [https://perma.cc/5FR5-JJY4].

 [14]. See, e.g., Human Rights Watch, supra note 11, at 13, 16; Kyle Kim, Immigrants Held in Remote ICE Facilities Struggle to Find Legal Aid Before They’re Deported, L.A. Times (Sept. 28, 2017), http://www.latimes.com/projects/la-na-access-to-counsel-deportation [https://perma.cc/CAD9-FMSH%5D.

 [15]. For additional recent discussions on the historical and political context of immigration detention, see Emily Ryo, Fostering Legal Cynicism Through Immigration Detention, 90 S. Cal. L. Rev. 999 (2017).

 [16]. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(a), 110 Stat. 1214 (1996).

 [17]. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 133, 110 Stat. 3009 (1996).

 [18]. César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1370 (2014); Margaret H. Taylor, The 1996 Immigration Act: Detention and Related Issues, 74 Interpreter Releases 209, 216 (1997).

 [19]. García Hernández, supra note 18, at 1370–71.

 [20]. Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 Harv. L. Rev. 1936, 1939 (2000).

 [21]. Alison Siskin, Cong. Research Serv., Immigration-Related Detention: Current Legislative Issues 5–6 (2012), https://fas.org/irp/crs/RL32369.pdf [https://perma.cc/R83M-DP3L%5D.

 [22]. There is some debate as to whether this growth can be partly attributed to what is commonly known as the “detention bed quota” or the “detention bed mandate.” Since 2009, Congress has mandated that the DHS maintain a certain minimum number of detention beds on a daily basis. The quota in 2009 was 33,400 beds, which increased to 34,000 in 2011. See Patrisia Macías-Rojas, From Deportation to Prison: The Politics of Immigration Enforcement in Post–Civil Rights America 73–74 (2016).

 [23]. Containing Cost of Incarceration of Federal Prisoners and Detainees: Prisons and Related Issues, Hearings Before a Subcomm. of the Comm. on Appropriations, 104th Cong. 1058 (1995) (statement of James A. Puleo, Exec. Assoc. Comm’r, Immigration & Naturalization Serv.); U.S. Immigration & Customs Enf’t, Weekly Departures and Detention Report 5 (2016), https://oversight.house.gov/wp-content/uploads/2016/07/ICE-Weekly-Departures-and-Detention-Report1.pdf [https://perma.cc/5K8K-MVJ6].

 [24]. U.S. Dep’t of Homeland Sec., Budget-in-Brief: Fiscal Year 2017 38 (2017), https://www.dhs.gov/sites/default/files/publications/FY2017BIB.pdf [https://perma.cc/DY3R-4N8Q].

 [25]. Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017); Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017); Memorandum from John Kelly, supra note 7.

 [26]. Between February and September of 2016, non–criminal removals were 41% of all removals. That figure rose to 43% during the same time period in 2017. See U.S. Immigration & Customs Enf’t, Fiscal Year 2017 ICE Enforcement and Removal Operations Report (Dec. 13, 2017), https://www.ice.gov/removal-statistics/2017 (select “Local Statistics” tab; then view PDF of “Local Statistics 2013–2016” for the 2016 statistics, and view PDF of “Local Statistics 2017” for the 2017 statistics).

 [27]. Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017); see also Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017); Memorandum from John Kelly, supra note 7.

 [28]. Regarding the Fiscal Year 2018 President’s Budget Request: Hearing Before the Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 115th Cong. 3–4 (2017) (statement of Thomas Homan, Acting Director, U.S. Immigration and Customs Enforcement), https://docs.house.gov/meetings
/AP/AP15/20170613/106057/HHRG-115-AP15-Wstate-HomanT-20170613.pdf [https://perma.cc
/QCA3-2RFZ].

 [29]. U.S. Dep’t of Homeland Sec., supra note 5, at 11; U.S. Dep’t of Homeland Sec., CBP Border Security Report: Fiscal Year 2017 1 (2017), https://www.cbp.gov/sites/default/files
/assets/documents/2017-Dec/cbp-border-security-report-fy2017.pdf [https://perma.cc/ERP5-L5PE%5D; see also Nick Miroff, Arrests Along Mexico Border Drop Sharply Under Trump, New Statistics Show, Wash. Post (Dec. 5, 2017), http://wapo.st/2Atmy6j?tid=ss_tw&utm_term=.53a99e255c63 [http://perma.cc
/9ST2-2PHD] (explaining that border apprehensions “show a sharp drop . . . immediately after President Trump’s election win, possibly reflecting the deterrent effect of his rhetoric on would-be border crossers; starting in May, the number of people taken into custody began increasing again”).

 [30]. U.S. Dep’t of Homeland Sec., supra note 5, at 10 fig. 10.

 [31]. García Hernández, supra note 18, at 1370–71; Ryo, supra note 15, at 1024–34; Dora Schriro, Improving Conditions of Confinement for Criminal Inmates and Immigrant Detainees, 47 Am. Crim. L. Rev. 1441, 1442 (2010).

 [32]. Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

 [33]. Am. Immigration Council, Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice 1 (2013), https://www.americanimmigrationcouncil.org
/sites/default/files/research/aic_twosystemsofjustice.pdf [https://perma.cc/L4HC-6JYR%5D; David Cole, In Aid of Removal: Due Process Limits on Immigration Detention, 51 Emory L.J. 1003, 1006–08 (2002); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody”, 48 U. Mich. J.L. Reform 879, 880–81 (2015).

 [34]. For a helpful and more detailed discussion on the statutory framework and the categories of noncitizens subject to detention, see Powers of the U.S. Government to Detain Noncitizens, 8 Immigr. L. & Proc. (MB) §108.02 (2017).  

 [35]. Immigration and Nationality Act § 236(a), 8 U.S.C. § 1226(a) (2018).

 [36]. Immigration and Nationality Act § 236(a)(2); see also Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007) (noting that “the phrase ‘release on recognizance’” is used “as another name for ‘conditional parole’ under § 1226(a)”).

 [37]. Immigration and Nationality Act § 236(b); see also 8 C.F.R. § 236.1(c)(9) (2018).

 [38]. See generally Powers of the U.S. Government to Release Detained Noncitizens, 8 Immigr. L. & Proc. (MB) §108.03 (2018) (discussing mandatory detention).

 [39]. Immigration and Nationality Act §§ 235(b)(2)(A), 236(c), 236A(a), 241(a)(2).

 [40]. 8 C.F.R. § 1.2 (2018). Arriving aliens subject to mandatory detention include individuals seeking asylum pending a final determination of whether they demonstrate a credible fear of persecution. Immigration and Nationality Act § 235(b)(1)(B)(iii)(IV).

 [41]. See Legal Challenges to Detention, 8 Immigr. L. & Proc. (MB) §108.05 (2018). See generally Farrin R. Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 Hastings L.J. 363 (2014) (discussing federal courts’ treatment of prolonged detention); Philip L. Torrey, Jennings v. Rodriguez and the Future of Immigration Detention, 20 Harv. Latinx L. Rev. 171 (2017) (same).

 [42]. Immigration and Nationality Act § 241(g).

 [43]. Avramenkov v. Immigration & Naturalization Serv., 99 F. Supp. 2d 210, 213 (D. Conn. 2000); Comm. of Cent. Am. Refugees v. Immigration & Naturalization Serv., 682 F. Supp. 1055, 1064 (N.D. Cal. 1988) (noting that “[t]he Attorney General has the authority, conferred by statute, to choose the location for detention and to transfer aliens to that location. . . . Such a transfer, standing alone, does not constitute a violation of plaintiffs’ due process or statutory rights”); see also Rady v. Ashcroft, 193 F. Supp. 2d. 454, 456–57 (D. Conn. 2002) (same); Sasso v. Milhollan, 735 F. Supp. 1045, 1048 (S.D. Fla. 1990) (same). But see César Cuauhtémoc García Hernández, Due Process and Immigrant Detainee Prison Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel, 21 Berkeley La Raza L.J. 17, 17 (2011) (arguing that the transfer of lawful permanent residents from one detention facility to another “frequently violates the Fifth Amendment’s due process right to counsel for lawful permanent residents”).

 [44]. Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-10-13, Immigration and Customs Enforcement Policies and Procedures Related to Detainee Transfers 1 (2009), https://www.oig.dhs.gov/assets/Mgmt/OIG_10-13_Nov09.pdf [https://perma.cc/H934-Y9XN%5D.

 [45]. See Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States (2009), https://www.hrw.org/sites/default/files
/reports/us1209webwcover.pdf [https://perma.cc/J2WB-LXX3]. For an updated Human Rights Watch report on transfers, see Human Rights Watch, supra note 11.

 [46]. See Letter from Phyllis A. Coven, Acting Dir., U.S. Immigration & Customs Enf’t, to Alison Parker, Deputy Dir., U.S. Program, Human Rights Watch (Feb. 22, 2010), https://www.hrw.org/sites
/default/files/related_material/Coven%20to%20HRW%20Feb%202010.pdf [https://perma.cc/LF2N-KNFF%5D. In 2011, ICE revised the transfer provisions in its Performance-Based National Detention Standards. See U.S. Immigration & Customs Enf’t, Performance-Based National Detention Standards 2011, at 443–50 (2013), https://www.ice.gov/doclib/detention-standards/2011/pbnds2011
.pdf [https://perma.cc/RQF6-JSFZ%5D.

 [47]. See U.S. Immigration & Customs Enf’t, Policy 11022.1: Detainee Transfers 3 (2012), https://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf [https://perma.cc/R7ME-ZN6J].

 [48]. Maria Baldini-Potermin, § 3:3 ICE Office of Chief Counsel, in Immigration Trial Handbook (2017).

 [49]. 2009 Immigration Detention Reforms, U.S. Immigr. & Customs Enforcement (Dec. 12, 2011), https://www.ice.gov/factsheets/2009detention-reform [https://perma.cc/9JZS-QGMW].

 [50]. Id.

 [51]. Id.

 [52]. Memorandum from Sally Q. Yates, Deputy Attorney Gen., to the Acting Dir., Fed. Bureau of Prisons (Aug. 18, 2016), https://www.justice.gov/archives/opa/file/886311/download [https://perma.cc
/8BB3-CAXE].

 [53]. See Letter from Tom Carper, Ranking Member of Permanent Subcomm. on Investigations, & Kamala D. Harris, U.S. Senator, to John F. Kelly, U.S. Sec’y of Homeland Sec. (May 15, 2017), https://www.carper.senate.gov/public/_cache/files/73576fda-9990-46b4-86d3-b492a26336d3/2017-05-15-carper-and-harris-letter-to-dhs-re-private-prisons-press-.pdf [https://perma.cc/H9LM-7NQ3].

 [54]. U.S. Dep’t of Homeland Sec., supra note 13, at 2.

 [55]. Id. at 2, 11 n.14; see also Matt Zapotosky, Justice Department Will Again Use Private Prisons, Wash. Post, Feb. 24, 2017, at A4.

 [56]. See U.S. Comm’n on Civil Rights, With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities 25 (2015), https://www.usccr.gov/pubs/docs
/Statutory_Enforcement_Report2015.pdf [https://perma.cc/38Q3-BMFY%5D; Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-32, Concerns About ICE Detainee Treatment and Care at Detention Facilities 1 (2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf [https://perma.cc/ZPM7-32Z2%5D.

 [57]. See U.S. Immigration & Customs Enf’t, 2000 Detention Operations Manual, https://www.ice.gov/detention-standards/2000 [https://perma.cc/6WCB-2E2X%5D (last updated July 12, 2017); U.S. Immigration & Customs Enf’t, 2008 Operations Manual ICE Performance-Based National Detention Standards, https://www.ice.gov/detention-standards/2008 [https://perma.cc/PM2E-KM8R] (last updated July 12, 2017); U.S. Immigration & Customs Enf’t, 2011 Operations Manual ICE Performance-Based National Detention Standards, https://www.ice.gov/detention-standards/2011 [https://perma.cc/8EAZ-LREM%5D (last updated Jan. 3, 2018).

 [58]. U.S. Comm’n on Civil Rights, supra note 56, at 25.

 [59]. Office of Inspector Gen., U.S. Dep’t of Homeland Sec., supra note 56, at 3.

 [60]. See generally, e.g., Cole, supra note 33 (discussing constitutional limitations on immigration detention); Alina Das, Immigration Detention: Information Gaps and Institutional Barriers to Reform, 80 U. Chi. L. Rev. 137 (2013) (discussing policy issues related to immigration detention); García Hernández, supra note 3 (examining the legal and political decisions that affect immigration detention); Stephen H. Legomsky, The Detention of Aliens: Theories, Rules, and Discretion, 30 U. Miami Inter-Am. L. Rev. 531 (1999) (discussing detention decisions); Margaret H. Taylor, Dangerous by Decree: Detention Without Bond in Immigration Proceedings, 50 Loy. L. Rev. 149 (2004) (examining the executive branch’s legal authority for immigration detention without bond).

 [61]. See generally, e.g., Robert Barde & Gustavo J. Bobonis, Detention at Angel Island: First Empirical Evidence, 30 Soc. Sci. Hist. 103 (2006) (analyzing immigration detention at San Francisco’s Angel Immigration Station from 1913 to 1919); Kalina Brabeck & Qingwen Xu, The Impact of Detention and Deportation on Latino Immigrant Children and Families: A Quantitative Exploration, 32 Hisp. J. Behav. Sci. 341 (2010) (analyzing immigration detention’s impact on immigrant families); Nancy Hiemstra & Deirdre Conlon, Beyond Privatization: Bureaucratization and the Spatialities of Immigration Detention Expansion, 5 Territory, Pol., Governance 252 (2017) (exploring the role of beauracratization in immigration detention’s expansion); Luis H. Zayas et al., The Distress of Citizen-Children with Detained and Deported Parents, 24 J. Child & Fam. Stud. 3213 (2015) (exploring the impact of immigration detention on immigrant children).

 [62]. See generally, e.g., Ingrid V. Eagly, Remote Adjudication in Immigration, 109 Nw. L. Rev. 933 (2015) (examining the role of remote adjudication in immigration cases); Kerwin et al., supra note 10 (analyzing nationwide detention data for a single night and arguing the federal government should work to provide this data more broadly and consistently); Emily Ryo, Legal Attitudes of Immigrant Detainees, 51 Law & Soc’y Rev. 99 (2017) (examining immigrant detainees’ legal attitudes); Emily Ryo, Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings, 52 Law & Soc’y Rev. 503 (2018) (investigating the role of lawyers in immigration bond hearings); Emily Ryo, Predicting Danger in Immigration Courts, Law & Soc. Inquiry (forthcoming 2018) (analyzing immigration judges’ decisions on dangerousness in bond hearings).

 [63]. See, e.g., Hiemstra & Conlon, supra note 61; Torrey, supra note 33.

 [64]. Chacón, supra note 12, at 31–32.

 [65]. Denise Gilman & Luis A. Romero, Immigration Detention, Inc. 6 J. on Migration & Hum. Security 145 passim (2018).

 [66]. Alison Mountz, Mapping Remote Detention: Dis/location through Isolation, in Beyond Walls and Cages: Prisons, Borders, and Global Crisis 91, 99–100 (Jenna M. Lloyd et al. eds., 2012).

 [67]. Lauren L. Martin, ‘Catch and Remove’: Detention, Deterrence, and Discipline in US Noncitizen Family Detention Practice, 17 Geopolitics 312, 326 (2012). Of note, studies have found that legal service organizations are one such supporting institution whose involvement is consistently related to more favorable outcomes in custody redetermination hearings—an essential release mechanism from detention. Eagly & Shafer, supra note 10; Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law & Soc’y Rev. 117 (2016); Ryo, Representing Immigrants, supra note 62.

 [68]. Fiscal year 2015 began on October 1, 2014 and ended on September 30, 2015. The Detention Data, however, contains information on sixty-one detainees who were released on October 13, 2015, indicating that the last date of the data extraction by ICE was October 13, 2015.

 [69]. Although TRAC obtained similar data from ICE pertaining to fiscal years 2013, 2014, and 2016, ICE produced these data in such a way that they are not amenable to meaningful analysis. For example, some of the data are missing a large set of records, while others contain a large set of seemingly duplicate records that cannot be identified accurately as duplicates.

 [70]. As discussed earlier, some of the records in the Detention Data predate fiscal year 2015; 679 facilities pertain to all of the records in the Detention Data, including the records that predate fiscal year 2015.

 [71]. Office of Mgmt. & Budget, 2010 Standards for Delineating Metropolitan and Micropolitan Statistical Areas; Notice, 75 Fed. Reg. 37246, 37252 (June 28, 2010), https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/fedreg_2010/06282010_metro_standards-Complete.pdf [https://perma.cc/K63B-WWG8%5D. The basic idea behind MSAs is “to represent a city or group of cities and its surrounding built-up and/or economically integrated region.” John E. Farley, Metropolitan Statistical Area, in The Blackwell Encyclopedia of Sociology 2993 (George Ritzer et al. eds., 2007).

 [72]. Bulletin from Shaun Donovan, Dir., Exec. Office of the President, Office of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Establishments, OMB Bulletin No. 15-01, at app. 2 (July 15, 2015), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2015/15-01.pdf [https://perma.cc
/35WN-EDSG].

 [73]. U.S. Census Bureau, Metropolitan and Micropolitan, https://www.census.gov/programs-surveys/metro-micro/about.html [https://perma.cc/AD3L-YAT5%5D (last updated Oct. 15, 2018).

 [74]. Bulletin from Jeffrey D. Zients, Deputy Dir. for Mgmt., Exec. Office of the President, Office of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Establishments, OMB Bulletin No. 13-01, at app. 3 (Feb. 28, 2013), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2013/b13-01.pdf [https://perma.cc/H9AB-KXRP%5D.

 [75]. We used the U.S. Office of Management and Budget’s (“OMB”) February 2013 delineation of metropolitan statistical areas (“MSAs”) and principal cities for our coding purposes, as doing so allowed us to identify the location of each facility in the Detention Data with respect to the principal cities at the beginning of fiscal year 2015. See id.

 [76]. See Exec. Office for Immigration Review, Recognition & Accreditation (R&A) Program, U.S. Dep’t of Justice, https://www.justice.gov/eoir/recognition-and-accreditation-program [https://perma
.cc/7YQ6-T467] (last updated Oct. 5, 2018). We used the list that appears on the archived Executive Office for Immigration Review (“EOIR”) website, which was updated on September 7, 2015. Exec. Office for Immigration Review, Accredited Representatives Roster, U.S. Dep’t of Justice (Sept. 7, 2015), https://www.justice.gov/sites/default/files/pages/attachments/2015/09/08/raroster-reps.pdf [https:
//perma.cc/3GMD-FDF6].

 [77]. 8 C.F.R. § 1292.1(a)(4) (2018); see also Office of the Chief Immigration Judge, Exec. Office for Immigration Review, U.S. Dep’t of Justice, Immigration Court Practice Manual 31 (Nov. 2, 2017), https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02
/practicemanual.pdf [https://perma.cc/KJA6-8V45%5D.

 [78]. See generally Francis P. Boscoe et al., A Nationwide Comparison of Driving Distance Versus Straight-Line Distance to Hospitals, 64 Prof. Geographer 188 (2012).

 [79]. In a note accompanying the records production, ICE indicated that records without detention facility names are calls that did not directly pertain to detention facilities. We did not include these calls in our analysis.

 [80]. U.S. Immigration & Customs Enf’t, ICE ERO Detention Reporting and Information Line, (May 1, 2017), https://www.ice.gov/contact/detention-information-line [https://perma.cc/B5CJ-GQZ7].

 [81]. Id.

 [82]. See U.S. Gov’t Accountability Office, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care, GAO-16-231, at 11 (2016), https://www.gao.gov/assets/680/675484.pdf [https://perma.cc/6VN6-BS5Z].

 [83]. See U.S. Immigration & Customs Enf’t, ICE Detention Reporting and Information Line (2017), https://www.ice.gov/sites/default/files/documents/Document/2015/DRIL_helpline_flyer
_community.pdf [https://perma.cc/7VQE-Y5PL%5D.

 [84]. Cf. Eagly & Shafer, supra note 10, at 89 (removing juvenile cases in analyzing case outcomes and discussing other researchers’ decisions to do the same).

 [85]. To determine which possible functional forms best fit our data, we estimated the empirical Nelson-Aalen cumulative hazard function and plotted it against the cumulative hazard of the Cox-Snell residuals, which should be a straight 45o line if the model fit the data well. We also examined the Akaike information criterion and the Bayesian information criterion, two conventional information-based criteria that assess model fit. We compared the results of these two diagnostic assessments across five different types of survival models, Cox, Weibull, exponential, lognormal, and loglogistic, and found that Weibull and lognormal models best fit our data. See Mario Cleves et al., An Introduction to Survival Analysis Using Stata 221–25 (3d ed. 2016).

 [86]. Negative binomial regression is a generalization of Poisson regression with an extra parameter to model overdispersion, which occurs when the conditional variance exceeds the conditional mean. See Joseph M. Hilbe, Negative Binomial Regression 1–5 (2d ed. 2011).

 [87]. We generally followed the United Nations’ classification system to sort the countries of citizenship in the Detention Data into major world regions. See United Nations, Methodology: Standard Country or Area Codes for Statistical Use (M49), https://unstats.un.org/unsd
/methodology/m49 [https://perma.cc/6YEL-GM9S].

 [88]. About 63% of detainees who were designated as having an aggravated felony were missing on the “most serious criminal conviction” variable.

 [89]. As we noted earlier, the Detention Data is longitudinal and contains information about the individual detention stints of all individuals detained in fiscal year 2015. Some of these detention stints occurred before fiscal year 2015 and in facilities that were not used by ICE in fiscal year 2015.

 [90]. Of the facilities in U.S. territories, seven were in Puerto Rico, three in Guam, two in the Virgin Islands, and one in Northern Mariana Islands.

 [91]. We present the detainee-level statistics in this way because detainees can move in and out of various facilities over the course of their detention.

 [92]. See generally William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044; Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544-RKJ (Px) (C.D. Cal. Jan. 17, 1997). The Detention Data does not contain information about whether the juveniles are unaccompanied or accompanied minors.

 [93]. For robustness checks on the results presented in Table 3 under varying specifications, see the Methods Appendix.

 [94]. U.S. Immigration & Customs Enf’t, supra note 47.

 [95]. Id.

 [96]. U.S.               Immigration & Customs Enf’t, Enforcement and Removal Operations Field Offices (2018), https://www.ice.gov/contact/ero [https://perma.cc/W37F-LYD9]; U.S. Immigration & Customs Enf’t, ERO Field Offices (2015), https://http://www.ice.gov/sites/default/files/documents
/Document/2016/eroFieldOffices.pdf [https://perma.cc/H8MD-8K74%5D.

 [97]. As we explain in detail in the Methods Appendix, however, a small number of transfers (N=64) involved a movement from one location to another that had distinct facility codes yet shared the same address.

 [98]. See, e.g., Inter-Am. Comm’n on Human Rights, Report on Immigration in the United States: Detention and Due Process 26–27, 137–40 (2010); García Hernández, supra note 43, at 17; Steering Comm. of the N.Y. Immigrant Representation Study Report, Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings,  33 Cardozo L. Rev. 357, 363 (2011); Mark Noferi, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 76–77 (2012).

 [99]. Peter L. Markowitz & Lindsay C. Nash, Constitutional Venue, 66 Fla. L. Rev. 1153, 1200 (2015) (noting that “federal immigration authorities’ unchecked control over venue allows them to manipulate the controlling law of a case because the case will be governed by the law of the federal circuit in the jurisdiction in which the immigration court sits”).

 [100]. Nancy Morawetz, Detention Decisions and Access to Habeas Corpus for Immigrants Facing Deportation, 25 B.C. Third World L.J. 13, 16 (2005).

 [101]. For robustness checks on the results presented in Table 5 under varying specifications, see the Methods Appendix.

 [102]. Human Rights Watch, supra note 45, at 21; see also Human Rights Watch, supra note 11, at 24 (“More than half of all transfers involved a facility that has an Intergovernmental Service Agreement with ICE to hold immigration detainees. These facilities are most commonly state or local criminal jails and prisons . . . .”).

 [103]. U.S. Immigration & Customs Enf’t, supra note 47, at 3.

 [104]. Nancy Hiemstra, “You Don’t Even Know Where You Are”: Chaotic Geographies of U.S. Migrant Detention and Deportation, in Carceral Spaces: Mobility and Agency in Imprisonment and Migrant Detention 68 (Dominique Moran et al. eds., 2013); D. Conlon & N. Hiemstra, Examining the Everyday Micro-Economies of Migrant Detention in the United States, 69 Geographica Helvetica 335, 342 (2014).

 [105]. On September 15, 2017, the first author filed a records request under FOIA with ICE seeking all records that reflect or describe policies, procedures, or systems used to make placement and transfer determinations. On May 10, 2018, ICE produced a one-page letter containing three ICE websites pertaining to ICE’s official policies on transfers. We thus continue to lack information about how ICE makes these determinations in practice.

 [106]. Our analysis of the ICE detention-facility dataset that contains information on the facilities’ bed space capacity generally supports this conclusion. See 2015 ICE Detention Facility Listing, U.S. Immigration & Customs Enf’t (Oct. 3, 2017), https://www.ice.gov/foia/library (expand “Detention Facility Statistics;” then follow “2015 ICE Detention Facility Listing” hyperlink); see also The GEO Grp., Inc., 2011 Annual Report 2 (highlighting the large bed-space capacity of its facilities as its competitive market advantage); Corrections Corporation of America, 2009 Annual Report on Form 10-K 9 (2009) (same).

 [107]. See generally, e.g., Rose M. Brewer & Nancy A. Heitzeg, The Racialization of Crime and Punishment: Criminal Justice, Color-Blind Racism, and the Political Economy of the Prison Industrial Complex, 51 Am. Behav. Scientist 625 (2008); Heather Ann Thompson, Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History, 97 J. Am. Hist. 703 (2010); Rebecca U. Thorpe, Perverse Politics: The Persistence of Mass Imprisonment in the Twenty-First Century, 13 Persp. on Pol. 618 (2015).

 [108]. Mountz, supra note 66, at 95–96 (discussing the ways in which isolation deprives detainees of essential knowledge and information); Alison Mountz et al., Conceptualizing Detention: Mobility, Containment, Bordering, and Exclusion, 37 Progress in Hum. Geography 522, 529 (2013) (discussing research that documents the negative psychological impacts of isolation on detainees).

 [109]. See Am. Civil Liberties Union of N.M., Outsourcing Responsibility: The Human Cost of Privatized Immigration Detention in Otero County 59 (2011), https://www.aclu-nm.org/sites
/default/files/wp-content/uploads/2011/01/OCPC-Report.pdf [https://perma.cc/2MPC-P4FL]; U.S. Dep’t of Homeland Sec., supra note 13, at 45.

 [110]. See Chacón, supra note 12, at 21–32.

 [111]. See Office of the Inspector Gen., U.S. Dep’t of Justice, Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, at i (2016), https://oig.justice.gov/reports
/2016/e1606.pdf [https://perma.cc/AQF2-L9Q9].

 [112]. Memorandum from Sally Q. Yates, supra note 52. Attorney General Jeff Sessions, nominated by President Trump, subsequently rescinded the Memorandum from Deputy Attorney General Yates, noting that “[t]he memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.” Memorandum from Jefferson B. Sessions III, Attorney Gen., to the Acting Director, Fed. Bureau of Prisons (Feb. 21, 2017), https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf [https://perma.cc/4CNQ-G4TY%5D.

 [113]. See Chacón, supra note 12, at 25 (concluding that “systematic comparative evidence is lacking” with respect to conditions of confinement in immigration detention).

 [114]. See generally, e.g., Cal. Coal. for Universal Representation, California’s Due Process Crisis: Access to Legal Counsel for Detained Immigrants (2016), https://www.nilc.org
/wp-content/uploads/2016/06/access-to-counsel-Calif-coalition-report-2016-06.pdf [https://perma.cc

/X8LN-XSTB]; Andrea Black & Joan Friedland, Nat’l Immigration Law Ctr., Blazing a Trail: The Fight for Right to Counsel in Detention and Beyond (Richard Irwin ed., 2016), https://www.nilc.org/wp-content/uploads/2016/04/Right-to-Counsel-Blazing-a-Trail-2016-03.pdf [https://perma.cc/JQJ3-ACPC%5D; Maggie Corser, Ctr. for Popular Democracy, Access to Justice: Ensuring Counsel for Immigrants Facing Deportation in the D.C. Metropolitan Area (Emily Tucker et al. eds., 2017), https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4
_033117%20%281%29.pdf [https://perma.cc/CXT5-TNX4%5D.

 [115]. Office of Inspector Gen., U.S. Dep’t of Homeland Sec., supra note 44, at 4.

 [116]. Id.

 [117]. For an examination of the relationship between the characteristics of communities hosting detention facilities and detention outcomes, see Emily Ryo & Ian Peacock, Beyond the Walls: The Importance of Community Contexts in Immigration Detention, Am. Behav. Scientist (forthcoming 2018).

 [118]. Det. Watch Network v. U.S. Immigration & Customs Enf’t, 215 F. Supp. 3d 256, 259–60 (S.D.N.Y. 2016).

 [119]. Press Release, Det. Watch Network, Private Prison Corporations Thrown Out of Court, Feb. 8, 2017), https://www.detentionwatchnetwork.org/pressroom/releases/2017/private-prison-corporations-thrown-out-court [https://perma.cc/3NKK-XEHX%5D.

 [120]. U.S. Gov’t Accountability Office, GAO-16-231, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care 28 (2016), https://www.gao.gov/assets/680/675484.pdf [https://perma.cc/ZZP8-4PFW].

 [121]. Office of Inspector Gen., U.S. Dep’t of Homeland Sec., supra note 56, at 5.

 [122]. Id.; see also Am. Civil Liberties Union of N.M., supra note 109, at 35 (reporting that detainees “refused to submit grievance forms or complaints exposing officer behavior because they feared retaliation”).

 [123]. In January 2018, Ravi Ragbir was taken into ICE custody during his regular check-in with immigration authorities and flown to a detention facility in Miami without notice to his lawyer or his wife. For additional details about Ragbir’s case, see Liz Robbins, Activist Entitled to ‘Freedom to Say Goodbye,’ Judge Rules, N.Y. Times (Jan. 29, 2018), https://www.nytimes.com/2018/01/29/nyregion
/judge-released-immigrant-ragbir.html.

 [124]. Ragbir v. Sessions, No. 18-cv-236 (KBF), 2018 U.S. Dist. LEXIS 13939, at *6–7 (S.D.N.Y. Jan. 29, 2018).

 [125]. Id. at *7.

 [126]. Likewise, our measure of distance to the nearest EOIR accredited representative is time-invariant because our coding is based on the list that the EOIR published in fiscal year 2015.

 [127]. Nat’l Immigrant Justice Ctr., ICE Detention Facilities as of November 2017, https://immigrantjustice.org/ice-detention-facilities-november-2017 [https://perma.cc/6NLR-TXBH%5D (last visited Nov. 28, 2018).

 [128]. For a detailed discussion on R’s ggmap package, see David Kahle & Hadley Wickham, ggmap: Spatial Visualization with ggplot2, 5 R J. 144 (2013).

 [129]. Detention Facility Reports: Transfers, Transactional Records Access Clearinghouse, http://trac.syr.edu/immigration/detention/tran.shtml [https://perma.cc/NLD9-TFMV] (last updated Sept. 2015); Detention Facility Reports: Departures from ICE Detention, Transactional Records Access Clearinghouse, http://trac.syr.edu/immigration/detention/exit.shtml [https://perma.cc/AF58-BZ6Q%5D (last updated Sept. 2015).

 [130]. Given the number of unique websites we reference in this Section, we do not list them here individually, but they are available upon request from the authors.

Fostering Legal Cynicism Through Immigration Detention – Article by Emily Ryo

From Volume 90, Number 5 (July 2017)
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Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant detainees. This legal cynicism is characterized by the belief that the legal system is punitive despite its purported administrative function, legal rules are inscrutable by design, and legal outcomes are arbitrary.

These findings advance the study of democracy, legitimacy, and the rule of law in a number of ways. First, this Article offers a new way of conceptualizing the relationship between the state and individuals subject to immigration enforcement. This reconceptualization recognizes noncitizens not as passive objects of state control, but as moral agents who are capable of normative judgments about the law and legal authorities. Second, this Article provides a fuller and more nuanced perspective on immigration detention’s societal impacts, which are likely to be far more wide-reaching and long-lasting than commonly assumed. For example, immigrant detainees, as individuals embedded in domestic and transnational networks, have the potential to widely disseminate deference and trust, or alternatively cynicism and delegitimating beliefs, about the U.S. legal system and authorities. Together, these contributions underscore the urgency and importance of understanding the socialization function of law and legal systems for noncitizens in an era of increasing cross-border movement and migration control.


 

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Removal in the Shadows of Immigration Court – Article by Jennifer Lee Koh

From Volume 90, Number 2 (January 2017)
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The crisis in immigration court adjudication is well-documented. This Article contends that critiques of immigration adjudication are incomplete and understated because they have failed to account for the following reality: the vast majority of persons ordered removed never step foot inside a courtroom. In addition, even when cases are filed with the immigration courts, a substantial number result in removal orders without adjudication of the merits of the case. Removal in what this Article calls the “shadows of immigration court” have far eclipsed standard removal proceedings. The Article provides a descriptive account of five types of removal orders that comprise immigration court’s shadows: (1) expedited removal at the border, (2) reinstatement of prior removal orders, (3) administrative removal of non-lawful permanent residents with aggravated felony convictions, (4) stipulated removal orders following waivers of the right to a court hearing, and (5) in absentia orders for failure to appear in immigration court. The Article identifies several concerns that apply to mainstream immigration court proceedings and asserts that those critiques are amplified in such shadow proceedings. It concludes by arguing for more sustained inclusion of shadow proceedings in reform proposals directed at improving immigration adjudication.

 

 

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Independence and Immigration – Article by Amanda Frost

From Volume 89, Number 3 (March 2016)
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Part I of this Article observes that, surprisingly, the Constitution provides little guidance on many of the basic issues in immigration law, such as which governmental institutions have the authority to create the rules regarding who may come to the United States, the limits on governmental power to exclude or remove noncitizens (if any), and the degree to which noncitizens within the United States are protected by the U.S. Constitution (if at all). Part I then describes how the Declaration of Independence explicitly and implicitly addresses some of these questions.

Part II explains how the Declaration’s espousal of universal rights, as well as its special solicitude for immigrants, has led the Supreme Court to conclude that the Constitution protects noncitizens from laws seeking to regulate their conduct. Part II focuses on the Supreme Court’s groundbreaking decision in Yick Wo v. Hopkins, in which the Court held for the first time that the Constitution applies to noncitizens living in the United States—a decision based, in part, on the universalist philosophy of the Declaration of Independence. A few years later, the Court extended Yick Wo’s rationale to provide constitutional protection even to those noncitizens found illegally in the United States. Yet during the same time period, the Court declined to adopt this expansive view of the Constitution when it came to determining noncitizens’ rights to enter and remain in the United States.

Part III argues that granting noncitizens constitutional protection from laws regulating their conduct is of little practical value when they have no such protection from laws restricting their ability to enter or remain in the United States. To give just one example, granting noncitizens the constitutional right of free speech means little when noncitizens may be deported for that same speech. Furthermore, as a matter of constitutional theory, it is hard to reconcile the universalist view of the Constitution’s scope with a membership approach that excludes noncitizens from that protection when it comes to laws selecting them for admission. If the Declaration’s universalist philosophy is to be taken seriously, the government’s selection process must be cabined by the same constitutional restraints that apply to laws that regulate the lives of citizens and noncitizens alike.

The Article concludes by noting how the plenary power doctrine is slowly eroding, albeit without ever being explicitly disavowed by the Court or the executive branch. Professor Hiroshi Motomura has observed that courts often strive to avoid interpreting federal immigration laws in ways that conflict with the Constitution, even though Congress is mostly free from constitutional constraints when legislating rules of admission. He labels these constitutional influences “phantom norms.” This Article argues that the Declaration’s universalism and its inherent embrace of the right to immigrate are phantom norms that also appear to be influencing the development of immigration law.


 

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The Reasonableness of a Race-Based Suspicion: The Fourth Amendment and the Costs and Benefits of Racial Profiling in Immigration Enforcement – Note by Christian Briggs

From Volume 88, Number 2 (January 2015)
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Claudia, a Mexican American with family roots in the United States since the mid-1800s, walked out of a grocery store, happily chatting with her three young children in Spanish as they walked toward her car. Before arriving at her car, she was stopped by government officials and asked for proof of citizenship. Speaking to the officers in accent-free English, she explained that she is in fact a United States citizen, offering her driver’s license as proof. After rejecting her driver’s license, the officers requested another form of identification as proof that she was in the United States legally. Eventually, Claudia gave the officers something that satisfied them, and they allowed her to continue with her children to her car. After the event, Claudia wondered what she might do in the future to avoid being stereotyped as an “undocumented Mexican.”


 

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Human Trafficking and U.S. Asylum: Embracing the Seventh Circuit’s Approach – Note by Kelsey M. McGregor

From Volume 88, Number 1 (November 2014)
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After struggling to provide for her children in her native country of Mexico, Esperanza lost one of her children to starvation. Devastated, she determined to leave her children in the care of family and seek work in Los Angeles. Pursuing what she believed to be a legitimate job offer, Esperanza was instead trafficked into a U.S. sweatshop. Separated from her children and unable to send any earnings home, Esperanza was cruelly abused by her traffickers. She recalls one trafficker asserting: “Dogs have more rights than you in this country. You are here illegally. And nobody can trust you. If you go to the police they might put you in jail because you have no papers . . . and if you do something I will call to the INS and they send you back, and not only send you back, they might put you in jail.”


 

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Arizona’s S.B. 1070 and Federal Preemption of State and Local Immigration Laws: A Case for a More Cooperative and Streamlined Approach to Judicial Review of Subnational Immigration Laws – Note by Jennifer R. Phillips

From Volume 85, Number 3 (March 2012)
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 Early in the morning of July 15, 2010, protestors began to assemble outside the Sandra Day O’Connor U.S. Courthouse on the sun-baked streets of downtown Phoenix. Nearly 400 individuals gathered, armed with megaphones, sunscreen, and a firm sense of resolve, to demonstrate their support or, more likely, opposition to Arizona’s immigration law known as S.B. 1070.
 
Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act, was signed into law by Arizona Governor Janice Brewer on April 23, 2010. The newly-enacted law, which added provisions to the Arizona law concerning the employment, law enforcement, and documentation of immigrants, has been labeled by pundits as “the nation’s toughest bill on illegal immigration.” The demonstration on July 15, one of dozens to occur throughout the nation that summer, was fueled by the first day of preliminary injunction hearings held by U.S. District Court Judge Susan Bolton, who was presiding over the seven lawsuits challenging S.B. 1070.
 

 

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Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment – Article by D. Carolina Nuñez

From Volume 85, Number 1 (November 2011)
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 As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established “substantial connections” to the United States. Lower courts have relied on Verdugo’s holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the “substantial connections” test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States.
 

This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court’s treatment of aliens’ constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court’s evolving approach to membership and highlights Verdugo’s pivotal role in the development of that approach. This Article suggests that the Court’s increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging “post-territorial” approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo’s progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo’s post-territorial mandate by failing to evaluate the claimant’s substantive indicators of membership.


 

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