Immigration Law Archives – Southern California Law Review

Sentencing Immigrants

March 2026March 2026Eric S. Fish*

Introduction

The most commonly charged federal felony is the crime of reentering the United States after deportation.¹ On average twenty thousand people have been prosecuted for it per year since 2010, making unlawful reentry cases about one-third of the federal criminal caseload.² And that number is about to dramatically increase. President Trump’s Department of Justice has announced a new policy of charging felony unlawful reentry in every available case, and it plans to reassign federal prosecutors working on drug and terrorism cases in order to prosecute more immigrants.³ Roughly 99% of the defendants in unlawful reentry cases are Latin American.⁴ The charge is, by definition, a nonviolent and victimless crime. It involves only entering or being found in the United States after a deportation. Yet defendants in these cases are systematically punished more harshly than comparable U.S. citizen defendants are in other cases. This happens in two ways.

First, the United States Sentencing Guidelines count reentry defendants’ criminal history against them twice. The Sentencing Guidelines are a complex set of rules that produce recommended sentences in federal criminal cases. While federal judges are not bound by the Guidelines, they follow the Guidelines about 90% of the time in unlawful reentry sentencings.⁵ In a standard criminal case, the Guidelines create a recommended sentence range by quantifying two variables: the defendant’s past convictions and facts about the current case. Past convictions create a “Criminal History Category” between one and six, while facts about the current crime create an “Offense Level” between one and forty-three.⁶ But in unlawful reentry cases, past convictions increase both the Criminal History Category and the Offense Level. Reentry defendants thus receive much larger sentence enhancements for their past crimes.

This double counting is worsened by another problem: the arbitrary way prior convictions are used to generate enhancements. The unlawful reentry guidelines make large swings in sentence length turn on obscure details of a person’s criminal history. This renders sentencing in these cases uniquely random and uncertain. Multiple years in prison turn on minutiae like the precise timing of a deportation order or probation violation, or whether a state uses a determinate or indeterminate sentencing system. People with similar criminal and immigration histories receive vastly different sentences based on such technical differences. And this problem is further compounded by the difficulty of finding and interpreting state conviction records. Figuring out the recommended sentence is like solving a high-stakes logic game. Defense lawyers are commonly unable to discern what length of sentence a defendant is looking at. And because the system pressures reentry defendants to plead guilty at the first opportunity, defendants often find out at sentencing that their punishment will be more severe than anticipated.

Second, undocumented immigrants serve a substantially larger portion of their sentences than do U.S. citizen defendants. The First Step Act, signed into law by President Trump in 2018, created a new system of “earned time” credits for federal prisoners.⁷ Under that law, a federal defendant who is willing to participate in anti-recidivism programs can get up to fifteen days off their prison sentence for every thirty days served.⁸ That means their time in prison can be reduced by up to one-third. In addition, defendants receive these credits even if they are not assigned to a program or no program is available. The only requirement is that they not refuse to participate. But deportable immigrants are prohibited from both participating in First Step Act programs and receiving custody reductions.⁹ This means that, by law, an undocumented prisoner will serve a significantly higher percentage of their sentence due to their immigration status.

To illustrate how this sentencing discrimination works in practice, consider two federal defendants: X and Y. Defendant X is charged with escaping from a federal prison, while defendant Y is charged with reentering the United States after deportation.¹⁰ Both X and Y have identical criminal histories: two prior felony convictions within the past fifteen years, each resulting in a two-year sentence. Under the Sentencing Guidelines, both X and Y will have a Criminal History Category of III due to the two prior felonies.¹¹ Assuming that there are no aggravating or mitigating facts (like using physical violence or returning to custody voluntarily), X will have an Offense Level of thirteen for escaping from prison.¹² Y will start with a lower Offense Level of eight for reentering the United States. But Y’s past convictions will also trigger enhancements of the Offense Level. If Y’s first deportation happened either before or after their two felony convictions, their total Offense Level will be sixteen.¹³ If their first deportation happened in between the two felony convictions, the Offense Level will be twenty-four.¹⁴ The Guidelines will recommend a sentence of eighteen to twenty-four months for X’s prison escape. And for Y’s reentry, they will recommend a sentence of either twenty-seven to thirty-three months or sixty-three to seventy-eight months (depending entirely on the timing of the first deportation). Unlawful reentry is the only federal crime for which criminal history is double counted like this. And once in prison, X will qualify for First Step Act programs that will let X spend up to one-third of their sentence out of custody or at a halfway house. Y, as a deported immigrant, cannot benefit from those programs.

As this example shows, these rules create two separate and unequal federal sentencing systems. Undocumented defendants, basically all of them Latin American, are treated more severely for their past crimes and are denied the lenient sentence reductions that U.S. citizens enjoy. And the enactment history of these policies reflects nativist animosity toward Latin American immigrants. The large recidivist enhancement for unlawful reentry was first created in 1991 with no study and little debate.¹⁵ It was enacted in response to Congress increasing the maximum sentence from two to fifteen years. That statutory change, in turn, was driven by racial panic in Florida over Haitian and Cuban refugees causing a supposed crime wave.¹⁶ The initial enhancement focused only on a small number of serious crimes, including murder and drug trafficking. But it evolved over time into a general enhancement for all past crimes. The First Step Act, in turn, was the first Trump Administration’s signature criminal justice reform initiative. Since the Trump Administration has been the most anti-immigration presidency in

recent memory, it is not surprising that the law excludes deportable immigrants from its earned time credit system.¹⁷

These sentencing rules explicitly discriminate against immigrants, and their history reflects racist and nativist antipathies. It might thus be logical to look to the Equal Protection Clause for a remedy, or to the federal statute mandating that the Sentencing Guidelines be “entirely neutral” as to race and national origin.¹⁸ But defendants trying to make such arguments have run into a problem—the Supreme Court’s antidiscrimination doctrines erect numerous obstacles to such equality claims.¹⁹ Federal laws that discriminate by immigration status are only subjected to “rational basis” review.²⁰ While these sentencing rules overwhelmingly burden Latin American defendants, the Supreme Court has disallowed racial discrimination claims that rely on disparate impact.²¹ And the Court adopts a strong presumption that government action is not motivated by racial animus.²²

But sentencing is not like judicial review. In the discretionary sentencing context, the judge is the legally designated decisionmaker. They are not reviewing the work of an agency or legislature. Federal judges are empowered to disregard the Guidelines and sentence a defendant anywhere within the statutory range.²³ The deference concerns that have hollowed out Equal Protection doctrine thus do not apply to discretionary sentencing decisions. In other contexts, scholars have identified circumstances in which executive branch agencies engage in “administrative constitutionalism”—incorporating constitutional norms into policy more robustly than formal legal doctrine requires.²⁴ Judges should also embrace a version of administrative constitutionalism at sentencing. Here I call this “sentencing constitutionalism.” Employing it, judges should reject sentencing rules that create racial and immigration-status-based hierarchies. And they should do so even if those rules would be upheld in the formal constitutional review context. Justice Kennedy gestured at something like this approach in Beckles v. United States.²⁵ In that case, the Supreme Court held that constitutional vagueness challenges do not apply to the Federal Sentencing Guidelines because they are advisory.²⁶ But Justice Kennedy wrote a concurrence arguing that quasi-constitutional vagueness arguments still have a place in the discretionary sentencing context.²⁷ Sentencing constitutionalism is also analogous to the idea of “imperfect” defenses in criminal cases. There are contexts in which a defendant cannot legally argue a defense like duress or self-defense, but the moral justification underlying that defense still clearly applies.²⁸ Judges will often reduce defendants’ sentences due to such imperfect defenses.²⁹ Sentencing constitutionalism operates the same way, but with constitutional equality claims in place of defenses.

Federal crack cocaine sentencing provides a powerful example of sentencing constitutionalism in practice, as well as a close analogue to the sentencing discrimination faced by immigrants. For sentencing purposes, the Guidelines initially treated one gram of crack cocaine the same as one hundred grams of powder cocaine.³⁰ This caused crack cocaine traffickers to be punished much more harshly than powder cocaine traffickers for the same volume of basically equivalent drugs. And this had a clear disparate impact by race because crack cocaine defendants were almost entirely African American.³¹ Much like the policy of double-counting immigrants’ criminal history, these crack sentencing rules were designed without formal deliberation or policy analysis,³² and were made in response to a congressional statute enacted during a racialized moral panic over crime.³³ The crack sentencing guidelines were ultimately upheld in direct constitutional challenges.³⁴ But many federal judges have exercised their authority to disregard the crack guidelines and adopt less discriminatory sentencing practices.³⁵ In doing so, these judges have adhered to a higher standard of antidiscrimination than formal doctrine requires. Judges should act similarly in the immigrant sentencing context. They should refuse to impose the discriminatory rules built into the Guidelines, and they should counteract the discrimination built into the First Step Act’s sentence reductions.³⁶

This Article has two goals: to describe how federal sentencing law discriminates against undocumented immigrants, and to propose a framework for judges to counteract that discrimination. It is organized into four Parts. Part I traces the history of federal immigrant sentencing over the last several decades, exploring how and why these unequal rules were adopted. Part II shows that these sentencing rules discriminate explicitly by immigration status, and in effect by race. Part III explains how the Guidelines’ double-enhancements for criminal history create a sentencing system where arbitrary details of a defendant’s criminal record dictate large (often multi-year) increases in their sentence. It also illustrates the problem with a real-life case. Part IV introduces the concept of sentencing constitutionalism. It argues that judges should exercise their inherent power over discretionary sentencing to counteract punishment rules that discriminate by race and immigration status. It also shows that federal judges have been doing precisely this in the context of crack cocaine sentences—varying downward to mitigate racial discrimination that has gone unredressed in formal legal challenges.

I. The Evolution of Undocumented Immigrant Sentencing

This Part explores how federal law crafted a separate sentencing system for undocumented immigrant defendants. It focuses on three key changes. First, in the late 1980s and early 1990s, three members of Congress from Florida—Lawton Chiles, Bob Graham, and Bill McCollum—successfully pushed to increase the maximum penalty for unlawful reentry from two to twenty years.³⁷ These legislators justified the increase by arguing that immigrants were causing a crime wave. They did so in reaction to a nativist panic in Florida over Cuban and Haitian immigration. Second, in response to this increase in the maximum penalty, the United States Sentencing Commission amended the unlawful reentry guidelines in 1991 to provide double sentence enhancements for prior convictions.³⁸ Those guidelines have changed significantly in the intervening years, most notably in 2001 and 2016. But they still punish unlawful reentry defendants more severely for past convictions than other federal defendants. Third, in 2018 Congress enacted the First Step Act with support from the Trump Administration.³⁹ Among other things, that law created a system of earned time credits that let federal prisoners reduce their custody time by up to a third. But, due to the Trump Administration’s antipathy toward Latin American immigrants, prisoners with deportation orders were excluded from earning such credits.

A. Florida’s Refugee Crisis and Reentry Sentences

Congress originally criminalized unlawful reentry in 1929, as part of the “Undesirable Aliens Act.”⁴⁰ The legislators who enacted it believed in scientific racism, and their goal was to limit immigration from Latin America in order to preserve the purity of the white race.⁴¹ The law established, among other things, that any noncitizen convicted of reentering the United States after deportation would face up to two years in prison.⁴² That unlawful reentry provision is now codified at 8 U.S.C. § 1326.

The sentences for unlawful reentry remained unchanged from 1929 until the late 1980s, when three members of Congress from Florida—Senator Lawton Chiles, Senator Bob Graham, and Representative Bill McCollum—sponsored a series of amendments that made the law harsher. To understand these legislators’ focus on punishing unlawful reentry more severely, one must appreciate Florida’s immigration politics in the 1980s and early 1990s.⁴³ During that period, large influxes of refugees from Cuba and Haiti sparked a racial panic.⁴⁴ In 1980, the Mariel boatlift brought nearly 125,000 Cubans and Haitians to Florida.⁴⁵ Thousands more Haitians arrived in Florida as refugees from the Duvalier regime, and later from the military government that overthrew President Aristide in a coup.⁴⁶ The presence of these immigrants caused a racist and nativist backlash among Floridians. The refugees were seen as carrying infectious diseases and creating a public health crisis.⁴⁷ They were also viewed as committing widespread crime.⁴⁸ Especially salient in Floridians’ minds was the specter of Latin American and Caribbean drug trafficking networks.⁴⁹ Florida’s politicians (including Chiles, Graham, and McCollum) stoked these nativist fears and responded to them with anti-immigrant measures.⁵⁰ The federal government incarcerated thousands of Cuban and Haitian immigrants in detention centers and jails.⁵¹ And Florida’s representatives in Congress sought, among other things, to increase the penalties for unlawful reentry.

The maximum sentence for unlawful reentry stayed at two years until 1988, when Senator Lawton Chiles proposed an amendment to increase it.⁵² Chiles’s amendment, which was attached to the Anti-Drug Abuse Act of 1988, increased the maximum penalty to five years for any defendant who was deported after a felony conviction.⁵³ It also increased the maximum to fifteen years for any defendant deported after an “aggravated felony” conviction (Senator Chiles’s original proposal was for a fifteen-year mandatory minimum sentence, but this was changed to an increased maximum in the final statute).⁵⁴ The term “aggravated felony” was introduced in the same legislation, as a way to designate crimes that will almost certainly result in deportation.⁵⁵ The term initially only applied to a small list of crimes—murder, drug trafficking, and firearms trafficking—but it was later expanded.⁵⁶ Along with the increase in reentry penalties, Chiles introduced a number of other amendments to make immigration enforcement more punitive. These included a provision increasing the penalties for immigrant smuggling, a provision making it a crime not to appear at deportation proceedings, and a provision denying bond in the immigration system for people with aggravated felony convictions.⁵⁷

In arguing for his amendments, Senator Chiles explicitly connected them to Florida’s panic over immigrant crime. In the committee hearing that he chaired presenting the proposals, he asserted in his opening statement that “an expansive drug syndicate established and managed by illegal aliens” was “so widespread and lucrative that they are attracting other aliens just to come into the illegal enterprise.”⁵⁸ He also claimed that “one of the largest and most widespread crack operations is run by illegal Haitians.”⁵⁹ Chiles elicited testimony from several Florida law enforcement witnesses, who testified that Haitian immigrants play a major role in the Florida drug trade, and that it is difficult to prosecute such immigrants due to them skipping bond or leaving the United States.⁶⁰ For example, one witness, an undocumented Haitian immigrant who was a police informant in Orlando, testified: “Many Haitians are brought into the United States illegally for the

sole purpose of dealing drugs and to recruit other Haitians for the drug business. These dealers are mixed with political refugees to hide their identity.”⁶¹

In Chiles’s speech introducing his proposed amendments on the Senate floor, he stated that “the number of illegal aliens who deal in crack in the Orlando area has increased 300 percent in the last year,” and that “these numbers are being duplicated throughout Florida.”⁶² He further warned that Florida was facing “expansive drug syndicates established and managed by illegal aliens.”⁶³ He claimed that “these syndicates operate many of the drug networks—crack, cocaine, and heroin—in Florida and throughout the United States.”⁶⁴ And also that “illegal alien felons . . . have no fear of or respect for our legal system.”⁶⁵ Chiles’s claims about the scope of immigrant drug activity were exaggerated and implausible.⁶⁶ Nonetheless, they were the major motivation behind his successful effort to increase reentry penalties. Chiles said the goals of the law were “creating a greater deterrent to alien drug traffickers who are considering illegal entry into the United States” and to “give law enforcement authorities a broader arena for prosecuting the drug offender.”⁶⁷

Several other legislative changes sponsored by Florida congressmen in the early 1990s also made § 1326 more punitive. In 1994, Representative McCollum successfully advocated an additional hike in the maximum sentences for unlawful reentry.⁶⁸ His amendment increased the maximum penalty to ten years for a defendant deported after a felony conviction, and to twenty years for a defendant deported after an aggravated felony conviction.⁶⁹ In addition, Representative McCollum and Senator Graham successfully sponsored several amendments that expanded the definition of “aggravated felony” to include a significantly longer list of crimes, many of them less serious.⁷⁰ Senator Graham also co-sponsored a provision that would have required the U.S. Sentencing Commission to increase unlawful reentry sentences for people deported after aggravated felony convictions.⁷¹ The proposal called on the Commission to “assign[] an offense level . . . that constitutes a meaningful deterrence to the commission of such offense.”⁷² Graham added this provision to Senate Bill 1711, titled “Implementing the President’s 1989 National Drug Control Strategy,” which passed in the Senate but did not ultimately become law.⁷³ A prosecutor testifying before a congressional subcommittee later described Graham’s proposal as “a ‘sense of the Congress’ recommendation to the Federal Sentencing Commission that would upgrade the penalty for an aggravated criminal felon who after conviction returns to the United States.”⁷⁴ Like Senator Chiles, Senator Graham and Representative McCollum were both focused on indulging Florida’s anti-refugee backlash.⁷⁵ They made unlawful reentry punishments harsher in response to the perceived immigrant crime wave in their home state. As the next Section will show, these three politicians’ efforts had enormous consequences for unlawful reentry sentencing.

B. Writing and Rewriting the Reentry Guidelines

In 1984, Congress enacted the Sentencing Reform Act and created the United States Sentencing Commission.⁷⁶ Three years later, the Commission published the first version of the United States Sentencing Guidelines.⁷⁷ The main purpose of these new Guidelines was to reduce sentencing disparities between judges.⁷⁸ They created a complex formula that takes facts about the defendant’s crime and past convictions as inputs, quantifies them into points,

and produces a sentencing range that judges were (until 2005) required to follow.⁷⁹

The Guidelines’ sentencing ranges are arrayed on a two-dimensional six by forty-three cell grid called the “Sentencing Table.”⁸⁰ The Sentencing Table’s Y-axis ranges from one to forty-three, and a defendant’s level is determined by facts about the current crime. Each crime is given a “base offense level” of a certain number of points, for example eight points for unlawful entry and thirteen points for escaping from prison.⁸¹ Additional points are then added (or subtracted) for “specific offense characteristics,” which are facts particular to the defendant’s crime. If someone escaping from prison uses or threatens to use force, for example, they get five additional points.⁸² The Sentencing Table’s X-axis provides the defendant’s “criminal history category,” which ranges from category I to category VI. Where a defendant lands on this dimension is determined by the number, severity, and recency of their past convictions.⁸³ The Guidelines thus take facts about the defendant’s current case and facts about their criminal history, plug those facts into two distinct formulas, and map the resulting numbers onto a two-dimensional grid to produce a sentence range.⁸⁴

When the Guidelines were first promulgated in 1987, a defendant convicted of unlawful reentry received a base offense level of six.⁸⁵ If the defendant had previously “unlawfully entered or remained in the United States,” they received two additional points as a specific offense characteristic.⁸⁶ The maximum offense level for unlawful reentry was thus eight. With eight offense level points, the sentence range varied from zero to six months (for those in criminal history category I) to eighteen to twenty-four months (for those in criminal history category VI).⁸⁷ According to the Sentencing Commission, this initial version of the reentry guideline was designed to reflect then-existing sentencing norms for immigration cases.⁸⁸ A year later, in 1988, the Commission wrote a new version of this guideline that simply had a base offense level of eight, with no specific offense characteristics.⁸⁹

In 1989, the reentry guideline was amended to double-count defendants’ criminal history. The Commission added a four-point enhancement applying to any defendant who “previously was deported after sustaining a conviction for a felony.”⁹⁰ This was the first time that the Commission created a specific offense enhancement for simply having a past conviction.⁹¹ This enhancement applied regardless of the prior conviction’s age—a felony from fifty years ago would still trigger the four-point enhancement.⁹² By contrast, the Guidelines’ standard criminal history score formula stops counting convictions after ten or fifteen years (depending on the prior sentence length).⁹³

The Commission enacted this enhancement without conducting any studies or hearings, and without providing any apparent explanation for the change.⁹⁴ The Commission’s commentary only notes that “this specific offense characteristic is in addition to, and not in lieu of, criminal history points added for the prior sentence.”⁹⁵ The enhancement closely tracks the language in Senator Chiles’s 1988 amendment to § 1326, which increased the maximum penalty to five years for any defendant “whose deportation was subsequent to a conviction for commission of a felony.”⁹⁶ The Guidelines’ commentary also mentions aggravated felonies, and suggests that “an upward departure may be warranted” in cases involving “a defendant previously deported after sustaining a conviction for an aggravated felony.”⁹⁷ The four-point enhancement in the 1989 Guidelines Manual is thus properly seen as a response to Senator Chiles’s amendment increasing the maximum sentences for defendants with prior felonies and aggravated felonies.⁹⁸

In 1991, the Commission added a much larger sixteen-point enhancement for any defendant who “previously was deported after a conviction for an aggravated felony.”⁹⁹ This was a very punitive change. For a reentry defendant in criminal history category I, it brought the sentencing range from zero to six months to fifty-one to sixty-three months.¹⁰⁰ For a defendant in category VI, it created a range of one hundred to one hundred twenty-five months. With this new enhancement, a single prior felony conviction for drug trafficking (or any other aggravated felony) would add multiple years to a defendant’s reentry sentence. This amendment was adopted a little over a year after Senator Graham’s proposal to mandate that the Commission increase penalties for reentry after an aggravated felony.¹⁰¹ While the Commission’s records do not reference Graham’s amendment, it was likely a motivating factor.¹⁰²

The Commission conducted hearings in 1991 on various proposed Guidelines amendments, including the enhancement for a prior aggravated felony.¹⁰³ At those hearings, a federal prosecutor named Joe Brown testified on behalf of the Department of Justice.¹⁰⁴ Brown recommended that the Commission adopt a twenty-point enhancement for defendants deported after committing an aggravated felony.¹⁰⁵ He connected this proposed enhancement to Senator Chiles’s amendment, noting that “[a]n increased penalty of this magnitude—two years to [fifteen] years—and limited to particularly defined offenses must, in our view, be reflected in the sentencing guidelines if the will of Congress is to be effectuated.”¹⁰⁶ Brown also emphasized the need to deter immigrant drug dealers, claiming that “[i]n the ordinary case, an alien drug dealer who illegally returns to the United States to practice his trade will continue this pattern of conduct until there is a substantial disincentive to do so.”¹⁰⁷ Brown was the only witness to discuss this enhancement at the hearings.¹⁰⁸ His analysis of it was perfunctory, taking up only two pages of the 171-page hearing transcript. By way of comparison, the Commission was simultaneously considering proposals for its corporate crime guidelines.¹⁰⁹ For those it held a public hearing with fourteen witnesses (including a former attorney general and two assistant attorneys general) that generated a 267-page transcript.¹¹⁰

The Commission conducted no policy analysis to justify the “aggravated felony” enhancement to the reentry guideline.¹¹¹ The Commission’s own staff declined to endorse the enhancement due to a lack of data.¹¹² No defense lawyers testified at the public hearing on the merits of the aggravated felony enhancement.¹¹³ Numerous federal prosecutors and law enforcement agents wrote to the Commission urging it to increase the penalties for reentry, with many of them citing Chiles’s law as a justification.¹¹⁴ The Sentencing Commission also interviewed practitioners in California and Texas, including INS agents, prosecutors, defense lawyers, and judges, who provided different perspectives on whether illegal reentry should be punished more harshly.¹¹⁵ Ultimately, aside from referencing Mr. Brown’s testimony, the Commission did not explain or justify the aggravated felony enhancement when it was adopted. The Commission enacted Mr. Brown’s proposal, but with sixteen points rather than twenty.¹¹⁶

These enhancements made the federal justice system much harsher for undocumented immigrants. They caused the average time in prison for unlawful reentry to more than double from 1991 to 2000, going from fifteen months to over thirty.¹¹⁷ The enhancements also helped the government bring many more reentry prosecutions. In 1991 only around 2,000 reentry cases were prosecuted in the federal courts, but by the year 2000 there were nearly 10,000 cases.¹¹⁸ The prior conviction enhancements facilitated this increase by giving federal prosecutors much more punishment leverage to compel plea bargains. And the federal prosecutors who lobbied the Commission for higher reentry guidelines in 1991 were keenly aware that higher guidelines meant more and faster guilty pleas.¹¹⁹ The increased reentry punishments empowered prosecutors to create a fast-paced plea system called “Fast Track.”¹²⁰ Under the Fast Track program, reentry defendants who qualified for an enhancement were offered a deal for a charge with a two-year maximum sentence.¹²¹ This deal required them to plead guilty at their first court appearance, waive the right to appeal, and agree to a specific sentence followed by immediate deportation.¹²² The stipulated sentence was usually two years, but prosecutors sometimes required sentences of two-and-a-half or four years.¹²³ If a defendant rejected this deal and had a prior felony or aggravated felony, then they faced a higher sentence under the mandatory Guidelines.¹²⁴ Fast Track thus used punishment leverage provided by the prior conviction enhancements to create a hyper-efficient plea process. The program was started in San Diego, but it spread to other border districts and allowed the massive growth of reentry prosecutions throughout the 1990s.¹²⁵

The Commission changed the reentry guideline in 2001 to create a more graduated system of prior conviction enhancements.¹²⁶ This change was motivated by concern over the proliferation of aggravated felonies. Congress repeatedly expanded the definition of “aggravated felony” over the course of the 1990s.¹²⁷ This caused a much larger number of crimes to trigger the sixteen-level enhancement. Initially, the enhancement had been narrowly focused on immigrants who committed murder, drug trafficking, and weapons trafficking.¹²⁸ But by 2001 the term “aggravated felony” applied to dozens of crimes, including fraud, forgery, burglary, immigrant smuggling, failing to appear for a sentence, crimes designated as “crimes of violence,” and many more.¹²⁹ The breadth of this list, combined with the severity of the sixteen-level enhancement, created some palpably unjust case outcomes. Defendants were regularly given much more severe sentences for reentry than they got for the original aggravated felony.¹³⁰ And a prior murder triggered the same sixteen-level enhancement as a prior forgery.

Federal judges and defense attorneys criticized the Guidelines for producing such harsh sentences.¹³¹ Judges also departed downward in about forty percent of cases, which the Commission characterized as judges “addressing this problem on an ad hoc basis.”¹³² The Commission rewrote the reentry guideline in 2001 in order to address these criticisms, and also to reduce the number of downward departures.¹³³ It created a tiered system of enhancements based on conviction type. Under the new guideline, different types of convictions would trigger enhancements of sixteen, twelve, eight, or four levels.¹³⁴ For example, the sixteen-level enhancement was limited to firearms offenses, drug trafficking, crimes of violence, immigrant smuggling offenses, and a few other enumerated crimes.¹³⁵ Less serious drug trafficking convictions (those with a sentence of thirteen months or less) triggered a twelve-level enhancement.¹³⁶ The remaining aggravated felonies resulted in only an eight-level enhancement.¹³⁷ And other felonies still caused a four-level enhancement.¹³⁸ The Commission also deleted an application note that permitted downward departures if an enhancement was based on a less-serious aggravated felony.¹³⁹

While the 2001 amendment made the reentry guideline somewhat less harsh, it still produced clear injustices. Relatively minor nonviolent crimes, like immigrant smuggling or low-level drug trafficking, triggered large twelve- or sixteen-point enhancements. And there were still no time limits, so crimes from several decades ago would count for the enhancements. The federal defense bar criticized these features of the guideline in letters and testimony before the Commission.¹⁴⁰ And in 2005, the Supreme Court declared in United States v. Booker that the Sentencing Guidelines were no longer mandatory.¹⁴¹ Federal judges could thus sentence defendants outside of the Guidelines range, through what became known as Booker variances. Judges took advantage of this new power to vary downward in illegal reentry cases in which the Guidelines were especially harsh.¹⁴² In one notable case, for example, the Ninth Circuit reversed a within-Guidelines fifty-two-month sentence because it was based on a prior conviction from twenty-five years ago.¹⁴³ From 2012 to 2016, about twenty-five percent of twelve-level and thirty-five percent of sixteen-level enhancement cases received below-Guideline sentences.¹⁴⁴ The Commission characterized this as an unusually high rate.¹⁴⁵

Federal judges and the Department of Justice also criticized the post-2001 reentry guideline for requiring use of the “categorical approach.”¹⁴⁶ Under that version of the guideline, the key question was whether a defendant’s prior conviction matched one of the enumerated crime categories triggering an enhancement. These categories included “crime of violence,” “firearms offense,” “drug trafficking offense,” “aggravated felony,” and more.¹⁴⁷ The categorical approach requires lawyers and judges to look at the statutory elements of a conviction, compare them to the generic federal version of the enumerated crime category, and determine whether the two match.¹⁴⁸ Many judges dislike the categorical approach because it raises difficult legal questions, creates additional litigation, and produces non-uniform results across different states.¹⁴⁹ And federal prosecutors repeatedly complained about the categorical approach at public hearings before the Commission, arguing that it produces arbitrary results and unnecessary litigation.¹⁵⁰

In 2016, the Commission rewrote the reentry guideline to address these criticisms.¹⁵¹ It made four major changes. First, the Commission keyed enhancements to the sentence imposed for the prior crime rather than the category of crime. This cut out the categorical approach. Under the new system, defendants receive the largest of a ten-, eight-, six-, or four-level enhancement depending on the length of the sentence imposed for a prior felony.¹⁵² In designing these enhancements, the Commission tried to approximate the enhancements previously imposed under the 2001 Guidelines for various kinds of prior convictions.¹⁵³ Second, the Commission added a new, second enhancement for a felony committed after the first deportation.¹⁵⁴ Prior versions of the guideline had only enhanced reentry sentences for felonies committed before the defendant was deported. This reflected Senator Chiles’s amendment, which only increased the maximum sentence for defendants whose removal was “subsequent to” a felony (or aggravated felony) conviction.¹⁵⁵ The Commission reasoned that it was arbitrary to enhance a sentence for pre-deportation crimes but not post-deportation crimes, so it added a second enhancement covering the latter.¹⁵⁶ Third, the Commission introduced time limits for the criminal history enhancements.¹⁵⁷ These time limits are the same as those for the normal criminal history score calculation—sentences of thirteen months or less count until ten years after imposition, and sentences of over thirteen months count until fifteen years after release from custody.¹⁵⁸ Fourth, the Commission added a new four-level enhancement for having been previously convicted of illegal reentry.¹⁵⁹

This new version of the reentry guideline mirrors the Sentencing Guidelines’ general criminal history calculation,¹⁶⁰ adding up to two additional (often much larger) prior conviction enhancements on top of it.¹⁶¹ This means reentry defendants now have their criminal history counted against them twice in two separate formulas, both based on prior sentence length. Other federal defendants are subjected to only one formula. The 2016 changes significantly lowered the amount of sentencing litigation in reentry cases, because they ended the use of the categorical approach.¹⁶² They also somewhat lowered the average reentry sentence.¹⁶³ But some defendants—namely those with a felony both before and after their first deportation—receive much higher sentences under the new guideline.¹⁶⁴ These changes did not seem to affect judges’ overall rate of downward variance, which has remained around eleven percent.¹⁶⁵ That is, notably, the lowest variance rate for all major categories of federal crime.¹⁶⁶

In sum, the reentry guideline has transformed repeatedly over three decades. The 1991 amendment reflected Senator Chiles’s (and Florida’s) panic over a purported wave of Haitian drug traffickers. It added sixteen levels for defendants deported after murder, drug trafficking, or weapons trafficking convictions. As Congress expanded the definition of “aggravated felony” over the 1990s to include a long list of crimes, the sixteen-level enhancement became obviously unjust in many cases. But rather than pare the guideline down, the Commission expanded it in 2001 to create graduated enhancements for many types of prior crime. Judicial, prosecutorial, and defense bar dissatisfaction with that version of the guideline caused the Commission to amend it again in 2016. The new version focuses on the length of prior sentences and adds an additional enhancement for post-deportation convictions. The reentry guideline has thus, in a process of preservation through transformation, morphed into a general criminal history enhancement that applies only to undocumented immigrants.¹⁶⁷ The Commission has yet to conduct any studies or publish any reports explaining why reentry defendants should be doubly punished for past crimes.¹⁶⁸

C. The First Step Act and Trump-Era Immigration Politics

Until 1984, federal prisoners were eligible for parole.¹⁶⁹ They could be released at the discretion of the United States Parole Board after serving at least one-third of their sentence. Under this system, the average federal prisoner served only forty-five percent of their sentence.¹⁷⁰ But Congress abolished federal parole in 1984, through the same law that created the Sentencing Commission.¹⁷¹ Congress replaced parole with a much less generous system of “good time” credits. Under this system, prisoners can now earn up to fifty-four days off for each year in prison.¹⁷² This means that, barring any other reductions, they must spend at least eighty-five percent of their sentences in prison.

The end of parole thus required federal prisoners to serve a much higher portion of their sentences. That did not change until 2018, when Congress enacted the First Step Act.¹⁷³ The First Step Act created a new system of “earned time” credits that further reduce a prisoner’s time in custody. Under this system, federal inmates are evaluated by a prison official to determine what kinds of in-custody programs they should participate in.¹⁷⁴ Such programs include, for example, prison work assignments, substance abuse treatment, psychological treatment, job training, and formal schooling.¹⁷⁵ As long as an eligible prisoner does not refuse to participate in these programs, they will receive ten days off of their prison sentence for every thirty days in custody.¹⁷⁶ Prisoners designated as “low” or “minimum” recidivism risks (fifty-five percent of federal prisoners) receive an additional five days off for every thirty days in custody.¹⁷⁷ “Low” and “minimum” risk prisoners also have their first year of earned time credit count toward early release from custody.¹⁷⁸ All other credit counts toward release into either home confinement or a halfway house.¹⁷⁹ Since halfway houses are designed for shorter stays to transition people out of prison, most of that time will go toward home confinement.¹⁸⁰ And prisoners can also receive the standard fifty-four days per year of good time credit on top of their earned time credit.¹⁸¹ Someone who earns all these credits will spend only about fifty-six percent of their sentence in a federal prison.¹⁸² The First Step Act has thus, at least for some, brought the federal system back to the old parole model where only about half of a sentence was served in prison.

But not all federal prisoners benefit from the First Step Act’s earned time credit system. Unlawful reentry defendants with a prior felony conviction are explicitly excluded.¹⁸³ So are all immigrants with a prior order of deportation.¹⁸⁴ And if a deportable immigrant who has not yet been ordered deported seeks to collect earned time credit, the law requires that they be put into deportation proceedings “as early as practicable” during their incarceration.¹⁸⁵ Thus, previously deported defendants (including all unlawful reentry defendants) cannot collect earned time credit, and deportable immigrants who try to collect it will swiftly be ordered deported.¹⁸⁶ The First Step Act also contains a list of forty-seven other criminal charges that trigger exclusion from earned time credits.¹⁸⁷ These are mostly violent crimes, and all of them are much more serious crimes than unlawful reentry. They include, for example, convictions related to explosives, drive-by shootings, arson, child pornography production, terrorism, torture, weapons of mass destruction, sex trafficking, and being a drug kingpin.¹⁸⁸ Defendants convicted of these crimes, as well as undocumented immigrants, only have access to good time credits. They therefore must serve at least eighty-five percent of their sentences.¹⁸⁹

The original version of the First Step Act allowed undocumented immigrants to collect earned time credit.¹⁹⁰ The bill passed by the House of Representatives in May 2018 did contain a list of conviction-based exclusions, including one for unlawful reentry with a prior felony, but not the broader immigration status exclusion.¹⁹¹ That was added when the bill went to the Senate. Contemporaneous reporting indicates that a bipartisan group of senators agreed to an amended version of the First Step Act in November 2018.¹⁹² This new version included the provision excluding all deportable immigrants from earned time credits.¹⁹³ The senators made that and other changes in negotiations with the White House, especially President Trump’s son-in-law Jared Kushner who played a significant role pushing for the law.¹⁹⁴ The senators’ goal with these changes was to persuade Senate Republicans to support the First Step Act, and ultimately to convince President Trump to sign it into law.¹⁹⁵ Including deportable immigrants was thus a nonstarter. Shon Hopwood, who worked directly with the Trump administration on the law, observed that “providing federal tax money to pay for rehabilitation programs and early release for those who will be deported had no chance of passing in the current Congress.”¹⁹⁶

These negotiations coincided with the first Trump Administration’s most intense period of hostility to Latin American immigration. In April 2018, shortly before the House passed its version of the First Step Act, President Trump made a series of posts on Twitter warning about immigrant caravans from Latin America. He wrote in one post, for example, that “Honduras, Mexico and many other countries that the U.S. is very generous to, sends many of their people to our country through our WEAK IMMIGRATION POLICIES. Caravans are heading here. Must pass tough laws and build the WALL.”¹⁹⁷ Trump also gave a speech claiming that immigrants in these caravans were committing widespread rapes.¹⁹⁸ Shortly after Trump’s posts, Attorney General Jeff Sessions announced a “zero tolerance” policy toward undocumented immigration.¹⁹⁹ This new policy caused an enormous increase in prosecutions for unlawful entry and unlawful reentry.²⁰⁰ That increase continued through 2018 and 2019.²⁰¹ The Trump Administration also, as part of its 2018 “zero tolerance” policy, systematically separated children from their parents at the border so that the parents could be prosecuted.²⁰² This family separation policy sparked a nationwide protest movement against the administration’s immigration policies.²⁰³ And in November 2018, while the First Step Act compromise was being negotiated, President Trump issued an executive order categorically denying asylum to immigrants who entered unlawfully.²⁰⁴ In signing the order Trump declared, “The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders.”²⁰⁵ This larger context of anti-immigrant policy and rhetoric explains why the Senate, in negotiations with the White House, excluded deportable immigrants from the new earned time credit system.

Immigrants’ rights groups and some Democratic House members opposed the First Step Act’s exclusion of undocumented immigrants. A coalition of activist groups including the NAACP, the ACLU, and the National Immigrant Justice Center raised concerns about the law in letters and press releases.²⁰⁶ This coalition cited, among other problems, that the law “excludes from its reforms most undocumented immigrants,” that it thereby “further criminalizes migration,” and that these exclusions “could also have a disparate impact on racial minorities.”²⁰⁷ A coalition of immigration-related nonprofits expressed concern that the law “sets the precedent that immigrants are outside the scope of people who should benefit from criminal justice reform.”²⁰⁸ And in the House debates concerning the First Step Act, several Democratic Representatives highlighted its discriminatory impact on immigrants. Representative Pramila Jayapal noted that she was “very concerned about language in the bill that excludes immigrants from being eligible for time credits.”²⁰⁹ And Representative Jerrold Nadler observed that “the new incentive system for pre-release custody credits could exacerbate racial biases,” because it “excludes large categories of inmates based on convictions for various offenses and on immigration status.”²¹⁰

The First Step Act enacted a generous new earned time credit system that, for those who qualify, can reduce a sentence by up to one-third. But the law also categorically excluded undocumented immigrants, keeping them trapped in a much more punitive system allowing only good time credits. That exclusion was crafted during the first Trump Administration’s most intense period of hostility toward Latin American immigration. And activists and legislators at the time pointed out its discriminatory consequences.

II. The Discrimination Problem

These policies create two separate and unequal federal sentencing systems: one system for U.S. citizens and another system for deported immigrants. In the citizens’ system, criminal history is counted once; in the immigrants’ system, it is counted twice. In the citizens’ system you can serve up to forty-five percent of your sentence out of prison, in the immigrants’ system you can serve only fifteen percent. This separate system for immigrants is not small. Since 2010, about one-third of all federal cases have been unlawful reentry prosecutions.²¹¹ And over ninety-nine percent of the defendants in those cases have been Latin American.²¹² Federal sentencing law thus creates a caste structure in which undocumented immigrants from Latin America are relegated to a punishment underclass. This Part makes the straightforward observation that this is discriminatory. It does so by comparing these two sentencing systems in detail. It shows that federal sentencing law discriminates facially by immigration status, and in effect by race and ethnicity.²¹³ The more complicated issue of constitutionality is explored in Part IV.

A. Double Counting Criminal History

The unlawful reentry guideline stands alone in basing a defendant’s offense level calculation entirely on their past crimes.²¹⁴ Other federal sentencing guidelines focus instead on the facts of the current crime. For drug trafficking, what matters is the amount and type of drugs.²¹⁵ For fraud, it is the amount of money lost or stolen.²¹⁶ For child pornography distribution, it is the number of images and the ages of the victims, among other factors.²¹⁷ But for unlawful reentry, facts about the current crime are not factored in.²¹⁸ The only thing that matters is the defendant’s criminal history. The reentry guideline enhances a defendant’s sentence once along the “criminal history category” axis, and a second time along the “specific offense level” axis. Past crimes thus count against a reentry defendant twice in two separate formulas. For nearly all other federal defendants, they count only once.²¹⁹

There are a few other places in the Guidelines where a past conviction triggers an increase in the offense level. A couple of guidelines have modest enhancements for defendants who committed the same kind of crime previously.²²⁰ For example, the guidelines for immigrant smuggling, passport fraud, and immigration fraud all contain a two-level enhancement for having been previously convicted of a “felony immigration and nationalization offense.”²²¹ The guideline for adulterating or misbranding food products contains a four-level enhancement for a prior conviction for the same offense.²²² And the guideline for domestic violence contains a two-level enhancement for a pattern of “stalking, threatening, harassing, assaulting the same victim,” which includes prior convictions.²²³ In addition, the guideline for being a felon in possession of a firearm ties the offense level to the nature and number of prior felony convictions.²²⁴ And the drug trafficking guideline increases the offense level if both (1) the drugs caused death or serious bodily injury and (2) the defendant has a prior felony drug offense.²²⁵

These other criminal history enhancements are much narrower than the reentry enhancements.²²⁶ They only apply to specific kinds of prior crimes, while the reentry enhancement applies to any prior felony. These other enhancements also have a much closer nexus to the defendant’s current crime. Most of them involve having committed the same kind of crime previously. For the felon-in-possession enhancements, the prior felony is itself an element of the new crime.²²⁷ And the drug trafficking criminal history enhancements only apply if the drugs caused death or serious bodily injury.²²⁸ In these circumstances, the prior crimes are directly relevant to the defendant’s conduct in the new case. By contrast, the enhancements in the unlawful reentry guideline apply to all criminal history in general, not just related crimes.

The reentry guideline’s criminal history enhancements are also much larger than other comparable enhancements. A single prior felony will get a reentry defendant between four and ten additional offense level points, depending on the sentence length.²²⁹ And this can happen up to twice, once for a felony before the first deportation and once for a felony after it.²³⁰ Nowhere else in the Guidelines can a defendant get such a high increase for just a single prior conviction. It is thus actually something of an understatement to say that reentry defendants have their convictions counted twice, because the extra enhancement is potentially much more severe than the Guidelines’ normal criminal history calculation. A prior conviction with a five-year sentence, for example, gives a reentry defendant both a one-level increase in their criminal history category and a ten-point increase in their offense level.²³¹ This takes a reentry defendant from a zero to six month range to a thirty to thirty-seven month range.²³² Other federal defendants starting from the same baseline would only see the one-level criminal history category increase, going from zero to six months to four to ten months.²³³ Reentry defendants can thus receive multiple additional years in prison due to past crimes that would net other defendants only a few extra months.

These enhancements apply in a significant percentage of reentry cases. According to the U.S. Sentencing Commission’s 2023 data, 43.6% of unlawful reentry defendants received a prior conviction enhancement.²³⁴ The average sentence for unlawful reentry was twelve months in 2023, and since 2012 it has fluctuated between nineteen months and eight months.²³⁵ But reentry defendants with prior convictions receive much longer sentences due to criminal history enhancements. According to the Commission, about 15% of reentry defendants since 2021 received sentences of at least two years, and 1% received sentences of at least five years.²³⁶ At the top of this distribution, hundreds of reentry defendants have gotten more than five years, and some even more than a decade in prison.²³⁷

The reentry guideline is also the only federal sentencing guideline that applies exclusively to noncitizens. It is used for four crimes: 8 U.S.C. § 1326 (unlawful reentry), 8 U.S.C. § 1325(a) (felony unlawful entry), 8 U.S.C. § 1253 (failure to depart after deportation order), and 8 U.S.C. § 1185(a)(1) (violating prescribed entry and departure regulations).²³⁸ By their explicit terms, these four provisions only apply to noncitizens.²³⁹ There are several other federal entry crimes that do apply to U.S. citizens, including passport fraud, entering the country without inspection, and entering the country through forgery or false statements.²⁴⁰ But those crimes are not covered by the reentry guideline, and do not receive its extra criminal history enhancement.²⁴¹ So, for example, a U.S. citizen fugitive who tries to reenter the country with a fake passport will not receive a double enhancement. And arguably comparable crimes that punish illicit presence, such as escaping from federal prison, failing to appear in court, failing to register as a sex offender, and trespassing on federal property, also receive no double enhancement.²⁴² Only counting criminal history twice in the reentry guideline thus constitutes explicit discrimination by immigration status. And because the reentry guideline is by far the most racially skewed, with over ninety-nine percent of defendants being of Latin American ancestry, doing so also effectively discriminates by race.²⁴³

The main rationale used to justify these criminal history enhancements is that they deter immigrants with prior convictions from reentering the United States. That was the rationale Senator Graham and Sentencing Commission witness Joe Brown invoked in 1991 when arguing for extra recidivist enhancements.²⁴⁴ It is also the primary rationale that federal judges have cited in upholding the enhancements.²⁴⁵ Though, notably, the Sentencing Commission itself has never announced an official justification for the enhancements.²⁴⁶ The logic of a deterrence rationale is simple—by imposing higher sentences, the reentry enhancements give immigrants with past convictions a stronger disincentive to return. But the Commission has not conducted any study or other policy analysis to explain why the normal criminal history enhancement inadequately deters.²⁴⁷ Rather, the story of the reentry guideline is one of politics and path dependence. As discussed above, the initial criminal history enhancement was a response to Senator Chiles’s 1988 statutory sentence increase.²⁴⁸ And that increase was, in turn, motivated by Floridians’ fear of Haitian drug dealers supposedly reentering the country to commit crimes.²⁴⁹ The Commission set the original enhancement at sixteen points for no recorded reason, and then revised it in 2001 and 2016 to accommodate judges’ and prosecutors’ complaints.²⁵⁰ But the size and nature of the reentry enhancements have never been connected to any empirical data about deterrence, or about reentry defendants committing additional crimes. Indeed, it is unlikely that first-time reentry defendants have any idea their Guidelines calculation will be enhanced so severely by their past criminal record.²⁵¹

These double enhancements also impose a great deal of suffering on defendants and their families. Many reentry defendants have deep ties to the United States. According to Commission data from 2013, 53.1% of reentry defendants first entered the United States when they were minors,²⁵²and 49.5% of reentry defendants have children living in the United States.²⁵³ And 74.5% had worked in the United States for more than a year before their arrest.²⁵⁴ People with criminal history in the United States are also more likely to have lived in the United States for an extended period.²⁵⁵ Thus, by focusing on prior convictions, the reentry guidelines direct more punishment at people with strong personal and family ties to this country. The prototypical target of the reentry enhancements is not a foreign drug dealer returning to commit more crimes. It is someone who grew up in the United States, has a family here, and wants to return to them. Many such immigrants spend large portions of their lives in federal prison because they repeatedly try to return to their spouses, their children, and the country they grew up in.²⁵⁶

B. Doing More and Harder Time

The First Step Act also discriminates against undocumented immigrants. It creates two different classes of prisoner: a majority who can collect earned time credits, and a minority who cannot.²⁵⁷ U.S. citizens are in the former category, excepting those who are in prison for a disqualifying crime like torture, child pornography production, or terrorism.²⁵⁸ Deportable immigrants, including all reentry defendants, are in the latter category.²⁵⁹ Prisoners who qualify for earned time credits can get up to fifteen days off their sentence for every thirty days served.²⁶⁰ That means they can serve up to one-third of their sentence in a halfway house, home confinement, or released from custody altogether. Prisoners who do not qualify for earned time credits only get the standard fifty-four days of good time credit per year. And the exclusion of deportable immigrants is also racially discriminatory, since nearly all deportable immigrants in federal prison are Latin American.²⁶¹

To defend this discrimination, one might argue that it makes sense to deny limited rehabilitation resources to prisoners who will be deported. Perhaps the federal government has an interest in limiting programs like drug treatment and job training to U.S. citizens. But this argument ignores a key fact about the earned time credit system: a prisoner can collect custody credits even while they are not participating in anti-recidivism programs. As long as a prisoner does not refuse to participate in programs assigned to them, they remain in earning status.²⁶² And this happens even if programs are unavailable, or if the Bureau of Prisons decides the prisoner does not need programs. For example, prisoners assigned to programs that lack openings still earn time credits while waiting for a spot.²⁶³ Prisoners also earn time credits for working jobs within the prison, like cleaning laundry or working in the kitchen.²⁶⁴ Such work assignments are standard in federal prison, and all able-bodied inmates (including deportable immigrants) are required to perform them.²⁶⁵ Many U.S. citizen prisoners receive earned time credit under the First Step Act for performing these prison jobs.²⁶⁶ But deportable immigrants do not receive that credit. The federal government has thus created a system where two prisoners—one a U.S. citizen and the other an

immigrant—will work alongside each other at the same job in the same prison kitchen, with the citizen getting a one-third sentence reduction for their labor and the immigrant getting nothing.

The federal prison system discriminates against deportable immigrants in numerous other ways as well. In addition to First Step Act credits, a federal prisoner can spend ten percent of their sentence (up to six months) in home confinement.²⁶⁷ Deportable immigrants, however, cannot get home confinement.²⁶⁸ They are excluded from nearly all in-prison treatment and rehabilitation programs.²⁶⁹ This includes the Residential Drug Abuse Program, a 500-hour treatment program that gives a one-year sentence reduction upon completion.²⁷⁰ Deportable immigrants cannot receive a “minimum security” designation by the Bureau of Prisons, meaning that they cannot be housed in the least restrictive prison facilities.²⁷¹ Unlike other prisoners, they cannot serve part of their sentences in a halfway house.²⁷² While the Bureau of Prisons is required to try to house inmates within 500 miles of their families, it does not do so for deportable immigrants.²⁷³ And the federal prison system houses most deportable immigrants in segregated facilities that have fewer amenities and less security than normal prisons, feature little in-custody programming, and are run by private corporations.²⁷⁴ In conjunction with the earned time credit exclusion, these policies create a separate and unequal prison system for undocumented prisoners.

III. The Arbitrariness Problem

The reentry guideline is also quite illogical in practice. It distributes prison time through a convoluted formula that is tangential to the severity of a defendant’s criminal history. From the defendant’s perspective, it feels like a twisted lottery—prison time is distributed at random based on what numbers turn up in what order. This Part explores several features of the guideline that cause it to treat defendants so arbitrarily. The basic problem is that up to two large (commonly multi-year) sentence enhancements are imposed based on superficial aspects of a defendant’s record. First, the guideline places a puzzling emphasis on the order of convictions vis-à-vis the first deportation. If all convictions occurred either before or after the first deportation, then there is only one enhancement. But if two convictions straddle the first deportation, there are two enhancements. Thus, multiple years in prison often turn on the order of events. Second, the guideline only looks at nominal sentences, not actual time served. The enhancements are thus inflated by state sentencing policies, like indeterminate parole and automatic good time credit, that make the nominal sentence much longer than the real one. Third, violations of criminal supervision (e.g., probation) artificially inflate these past sentences and cause very old convictions to still trigger enhancements. This is a common problem for reentry cases because deportation itself often results in probation violations. Fourth, the difficulty of obtaining conviction and deportation records, combined with the fast pace of guilty pleas in these cases, leaves many defendants in the dark. They often plead guilty thinking their prison term will be brief, only to find out that it will be much longer. This Part explains these sources of arbitrariness, showing how they exacerbate the guideline’s anti-immigrant discrimination. It also illustrates them with a real-world case example.

A. The Criminal History Lottery

Timing the Deportation

Before 2016, the reentry guideline only gave an enhancement for past convictions that were followed by a deportation.²⁷⁵ This mirrored Chiles’s amendment to § 1326, which increased the maximum punishment if a defendant was deported “subsequent to” a felony or aggravated felony.²⁷⁶ Convictions occurring after a defendant’s most recent deportation did not trigger an enhancement. The criminal history enhancement was thus a collateral consequence of being deported after a conviction, and not of a conviction alone. This reflected the Commission’s apparent purpose of deterring immigrants deported after felony convictions from returning to the United States.²⁷⁷

When the Sentencing Commission rewrote the reentry guideline in 2016, it expressed concern that just focusing on pre-deportation convictions was arbitrary.²⁷⁸ Take two defendants who committed the exact same prior crime, one before being deported and the other after being deported. Following the Commission’s logic, it made little sense to give the former defendant multiple more years in prison than the latter.²⁷⁹ But rather than simply removing the requirement that a conviction occur before a deportation, the Commission added a second enhancement.²⁸⁰ Under the new version of the guideline, a defendant can get up to two enhancements of up to ten specific offense points. The first enhancement is for a conviction occurring before the defendant’s first deportation, and the second is for a conviction occurring after their first deportation.²⁸¹ This solved the arbitrariness problem, by the Commission’s reasoning, because it treated defendants with pre- and post-deportation felonies equally.

However, the 2016 amendment added a whole new dimension of arbitrariness. Under this new system, the order of convictions vis-à-vis the first deportation is enormously important. And that fact bears little relationship to the actual severity of someone’s prior record. Consider the following four defendants, who suffer deportations and felony convictions in the following order:

Defendant A: Felony, Deportation, Felony: two enhancements (one under Guidelines section 2L1.2(b)(2), another under (b)(3))
Defendant B: Felony, Felony, Felony, Felony, Deportation: one enhancement (under (b)(2))
Defendant C: Deportation, Felony, Felony, Felony, Felony: one enhancement (under (b)(3))
Defendant D: Deportation, Felony, Deportation, Felony, Deportation, Felony, Deportation, Felony: one enhancement (under (b)(3))

Defendant A has the least serious criminal record, with just two felonies. But only Defendant A will receive two enhancements under the reentry guideline. Every other defendant gets just one enhancement, despite having more convictions than A and as many or more deportations than A. Why is Defendant A treated much more harshly? There is no logical explanation for distributing prison time this way. If the Commission’s goal is to punish people more severely for returning to the United States and committing additional crimes, it should not focus just on the first deportation. For example, Defendant D above receives no second enhancement despite being convicted of crimes both before and after their deportations. According to a study by the Sentencing Commission, in 2013 the median number of prior deportations for reentry defendants was 2, and the mean was 3.2.²⁸² According to the same study, the median number of past criminal convictions was 3 and the mean was 4.4.²⁸³ Conditioning sentence severity on the precise sequence of these events makes little sense.²⁸⁴ And from the defendant’s perspective, it seems quite random. Due to the size of these enhancements (between four and ten offense points), defendants who receive two of them are commonly looking at five to ten years in prison, sometimes even more.²⁸⁵ For example, assuming that all the felonies in the above illustration carried two-year sentences, Defendant A would have a recommended sentence range of sixty-three to seventy-eight months.²⁸⁶ Without the second enhancement, Defendant A’s range would be only twenty-seven to thirty-three months.²⁸⁷ And Defendants B, C, and D would face a range of forty-one to fifty-one months, despite having much more extensive felony records than A.²⁸⁸

Prosecutors can also exercise unilateral discretion over whether a post-deportation enhancement applies. In situations where a previously deported person is charged with a state crime, the federal prosecutor has a choice of when to bring them to federal court on the reentry case.²⁸⁹ If the prosecutor waits for the state case to end, and it results in a conviction and sentence, the defendant will then receive a sentencing enhancement in their federal reentry case.²⁹⁰ But if the prosecutor instead brings the reentry case first, there is no extra enhancement. The reentry guideline thus empowers prosecutors to manipulate a defendant’s sentence. And given the potential size of the enhancement, this sometimes means doubling or tripling a defendant’s prison term.²⁹¹ Different prosecutors’ offices have different policies on this question, with some prosecuting the reentry case right away and others waiting.²⁹² That adds yet another dimension of randomness to reentry sentencing.²⁹³

Misinterpreting State Sentences

Before 2016, the reentry guidelines’ prior conviction enhancements were keyed to substantive crime categories. These included “crime of violence,” “drug trafficking offense,” “aggravated felony,” and more.²⁹⁴ This caused much litigation using the categorical approach, with lawyers arguing over which state crimes did or did not qualify for which enhancements.²⁹⁵ Responding to judges’ and prosecutors’ complaints about this litigation, the Commission changed the guideline in 2016 to focus instead on past sentences. Under this new version of the guideline, the length of a sentence is treated as a proxy for the seriousness of the underlying crime.²⁹⁶ If the “sentence imposed” for a prior crime was five years or more, it is worth ten points; if it was at least two years and less than five, it is worth eight points; if it was more than thirteen months and less than two years, it is worth six points; and all other felonies are worth four points.²⁹⁷ This new system has reduced litigation over reentry sentences.²⁹⁸ But it interprets state sentences in an incredibly unsophisticated way. In doing so, it creates arbitrary differences in punishment, and artificially inflates many enhancements, based on variations in state sentencing procedures.

The current guideline looks at the nominal sentence imposed by a court, not at the amount of time a defendant served in custody.²⁹⁹ But the relationship between those two numbers varies widely between (and within) state systems. Some states require a defendant to serve all or nearly all of their sentence. Others set the sticker price of a sentence much higher than the time actually served. Consider some examples. In California, by default defendants serve only half of the announced prison sentence (and, under the recent “realignment” system, some defendants serve much less than that).³⁰⁰ Arizona and Florida, by contrast, are truth-in-sentencing states, and require all defendants to serve at least eighty-five percent of the announced sentence.³⁰¹ In Minnesota, felony defendants are released on supervision after serving two-thirds of their sentences.³⁰² And discretionary parole systems (which most states have) introduce further complications.³⁰³ In Utah, third-degree felonies are sentenced to an indeterminate term of zero to five years, and second-degree felonies get one to fifteen years.³⁰⁴ In Texas, defendants are eligible for parole after serving twenty-five percent of their sentence.³⁰⁵ But for all of these different state sentencing systems, the reentry guideline treats the maximum possible sentence as the “real” sentence. It does not matter if everyone in the courtroom—the judge, the lawyers, the defendant—understood that only a fraction of that time would be spent in prison. It does not matter if the sentence was an indeterminate term of zero to five years, and the defendant was paroled after just two months. The reentry guideline is deliberately ignorant of these facts. The sticker price is the sentence.

The 2016 amendment thus replaced one form of arbitrariness with another. Under the categorical approach regime, seemingly irrelevant differences in the elements of state crimes determined whether a prior conviction counted for an enhancement.³⁰⁶ Under the nominal sentence length regime, seemingly irrelevant differences in state sentencing procedures determine an enhancement’s size.³⁰⁷ The new system eases the burden of litigation on judges and prosecutors, but it maintains the burden of arbitrary treatment on defendants. One problem is that people with substantively similar prior sentences will get very different enhancements due to differences in state procedures. Another, related problem is that the nominal sentence often significantly overstates the seriousness of the underlying crime.³⁰⁸ For example, in Utah’s discretionary parole system you can serve just a few days in custody on a sentence that the Guidelines will count as five years long.³⁰⁹ But “five years” is a terrible proxy for the severity of the actual crime in such a case. And it seems seriously unjust to get a ten-point enhancement for conduct that only merited a short stay in jail. A system based on time actually served would be far more rational. Such an approach has precedent in the federal system: federal drug crimes use a time-served model for determining recidivist sentence enhancements.³¹⁰ But, for the sake of administrative convenience, the Sentencing Commission rejected that approach when it amended the reentry guidelines.³¹¹

Supervision Complications

Criminal supervision introduces further problems. Supervision sentences are very common in the United States: about 3.7 million people are currently on some form of probation or parole.³¹² When someone is sentenced to supervision, they can be put in custody for violating certain rules. This can happen if they do things like refuse to meet with a probation officer, fail a drug test, or commit a new crime.³¹³ Under the Guidelines, any sentence for a violation of criminal supervision gets added to the sentence for the original crime.³¹⁴ So if a person is initially sentenced to zero days in prison plus probation, and then gets a 219-day sentence for violating probation conditions, the Guidelines treat that as a 219-day sentence for the original crime.³¹⁵ In the context of the reentry guideline, this means supervision violations enlarge the prior conviction enhancements by adding to the measured lengths of past sentences.³¹⁶

Reentry defendants are especially susceptible to supervision violations, because deportation itself often causes them.³¹⁷ One standard supervision condition is that the supervisee must report in person to a probation or parole office.³¹⁸ But when someone is deported after release from jail, they cannot go meet their probation officer. This can trigger a violation report and an arrest warrant.³¹⁹ In addition, many state courts impose immigration-related conditions on undocumented supervisees, such as prohibitions on returning to the United States without legal permission or requirements to report to a probation officer upon return.³²⁰ When defendants are punished for violating immigration-based conditions, it also inflates their sentence enhancement in any later reentry case. This creates yet more double punishment—the state gives you a probation violation for returning to the United States, then the federal system treats that violation as evidence of separate bad conduct meriting an increased sentence for returning to the United States.³²¹

The Guidelines’ treatment of supervision violations also reproduces the problems discussed in the above Sections. Consider a person sentenced to probation and then deported for the first time. If that person returns to the United States and is prosecuted for a new crime, they will also get a probation violation.³²² If the sentence for that probation violation runs concurrent to the sentence on the new crime, then a single term in prison will count for two separate enhancements.³²³ Further, a supervision violation can also result in a nominal sentence that is higher than the real sentence. For example, in California the half-time rule applies to probation violations, and in Utah a violation sentence can include an indeterminate prison term with parole.³²⁴ In such cases the violation is counted as the maximum possible custody time rather than the actual time spent in prison.³²⁵ Consider the case of United States v. Gomez-Colin.³²⁶ The defendant was initially sentenced to probation on a Georgia felony conviction and then deported.³²⁷ He later returned to the United States and received a state probation violation for reentering the country unlawfully.³²⁸ This resulted in a five-year sentence that was set aside by the state court (meaning he did not serve it).³²⁹ But the federal court treated it as a full five-year sentence under the reentry guideline, giving him a ten-point enhancement.³³⁰ The guideline’s treatment of violation sentences thus compounds with its treatment of indeterminate sentences to inflate the reentry enhancements even further.

Lastly, supervision violations also cause very old cases to trigger sentencing enhancements. For any sentence of over thirteen months, the reentry guideline only imposes an enhancement if the defendant was in custody within fifteen years of their arrest for reentry.³³¹ So if someone served a two-year sentence but was released from custody more than fifteen years ago, that prior sentence does not count. However, supervision violations extend this timeline forward.³³² Thus, if someone served a two-year prison sentence and was released on parole thirty years ago, but they served time on a later parole violation within the last fifteen years, the entire conviction still counts under the reentry guideline.³³³ This is a common problem for reentry defendants, because deportation itself triggers supervision warrants.³³⁴ If a supervisee fails to report because they were deported, the court can issue a probation warrant that indefinitely pauses the clock on the term of probation.³³⁵ Then, if the supervisee is arrested and jailed many years later on the warrant, the supervision violation causes the underlying crime to count for a Guidelines enhancement. This is true regardless of how long ago the underlying conviction occurred.³³⁶ Reentry defendants are thus punished anew for decades-old crimes.

Slow Court Records, Fast Guilty Pleas

Given all these complications, it is often quite difficult to figure out a reentry defendant’s Guidelines range. First you need to get their conviction records, their supervision revocation records, and their deportation records. This commonly means requesting documents from multiple state and federal government bodies. Ordering these records is often a complicated matter.³³⁷ Many county courthouses only use paper documents, and many require records requests to be made in person or by mail.³³⁸ And the federal government takes months to provide immigrants with their deportation records.³³⁹ Indeed, a large portion of federal immigration files are kept in a defunct limestone mine in Missouri, and requested documents must be physically located there before they are provided.³⁴⁰ Once you have all of these documents, you must piece together the defendant’s deportation and criminal history, and put it in chronological order to figure out the recommended sentence. For the defendant, this exercise is a high-stakes logic game. It produces a longer or shorter sentence based on the specific features (and sequence) of their prior record.

Unfortunately, this logic game has a short time limit. Unlawful reentry prosecutions proceed very quickly. Over ninety-seven percent of them end in guilty pleas.³⁴¹ About one-quarter of those pleas are obtained through a prosecutor-controlled program called “Fast Track.”³⁴² The Fast Track program provides the defendant with a somewhat lower Guidelines range (usually a two- or four-point reduction) in exchange for (1) not filing any motions or appeals, and (2) pleading guilty within thirty days of their arrest.³⁴³ Reentry cases in the Fast Track program thus resolve very quickly.³⁴⁴ Even outside the Fast Track program, reentry cases tend to end in much faster guilty pleas than other federal crimes.³⁴⁵ Most reentry prosecutions are brought in high-volume border districts, where they comprise the majority of cases.³⁴⁶ Judges, defense lawyers, and prosecutors in those districts expect reentry cases to be routine guilty pleas and process them accordingly.³⁴⁷

This means defendants are pressured to plead guilty without having access to their full deportation and conviction records. The prosecutor usually provides a RAP sheet with basic prior conviction information from the FBI’s criminal records database, but such RAP sheets are incomplete. They often lack information about the dates of past convictions, the sentences, and any probation or parole violations.³⁴⁸ That information must be obtained from state agencies, which is a burdensome process. And while complete deportation records should theoretically be provided in discovery, reentry defendants who plead guilty have no right to pre-plea disclosure of those records.³⁴⁹ The defendant’s full deportation and criminal history is thus often unknown until a court-appointed probation officer obtains the records while writing a presentence report. Presentence reports are prepared after the conviction and take several months to complete.³⁵⁰ When provided to the defendant before sentencing, they often contain unpleasant surprises. If the probation officer finds a deportation order or supervision violation that the defense lawyer missed, multiple years can be added to the expected sentence.³⁵¹ Defendants thus often plead guilty thinking their prison term will be relatively short, only to find out right before the sentencing hearing that it will be much longer. The rapidity of guilty pleas in these cases, combined with the difficulty of obtaining records quickly, keeps defendants in the dark.

B. The Case of Mr. R

The reentry guideline’s criminal history enhancements thus create numerous problems. They produce arbitrary and illogical punishments, inaccurately measure prior sentence lengths, and make it difficult to ascertain a defendant’s sentencing range before the guilty plea. It is helpful to illustrate these problems with a concrete case. To that end, here is the story of Mr. R, a reentry defendant who was sentenced to ninety-six months in prison in 2014.³⁵² The sentencing in his case illustrates several of the reentry guideline’s absurdities.

Mr. R was born in a Latin American country. He moved to the United States with his father at the age of eight. In his late teens and early twenties, he collected a series of criminal convictions in California. In June 1995, when Mr. R was eighteen years old, he was convicted of stealing a car.³⁵³ He was sentenced to 365 days in jail and three years of probation. Shortly after his release, in September 1995, he was convicted of possessing cocaine with intent to sell.³⁵⁴ He was sentenced to three years in prison for the drug conviction and given a probation violation on the auto theft case with a concurrent three-year sentence. After his release from custody, he was deported from the United States for the first time in November 1997. He also received two separate three-year terms of parole in California, one for each of the 1995 convictions.³⁵⁵

Mr. R then reentered the United States and returned to California. He was convicted of robbery in 1998.³⁵⁶ For that conviction he received a state sentence of fifteen years in prison. He also received two concurrent parole violations in each of the 1995 cases. He remained in prison in California on this sentence until 2012, when he was released from custody and deported again. He then reentered the United States and was prosecuted federally for unlawful reentry. Under the pre-2016 Guidelines, he received a sentence of fifty-seven months in prison because of his prior robbery conviction.³⁵⁷

Fast forward to 2018. Mr. R is arrested again for entering the United States and charged with unlawful reentry. He is now in his early forties, and his most recent state conviction is from 1998. Mr. R’s court-appointed defense lawyer knows that the 1998 robbery conviction will trigger a ten-point enhancement, because Mr. R was released from custody within the last fifteen years.³⁵⁸ But the lawyer does not think either of the 1995 convictions will count, because they are too old. This means Mr. R will receive just one prior conviction enhancement (for a post-first-deportation felony).³⁵⁹ The lawyer tells Mr. R that he is looking at a Guidelines range of forty-six to fifty-seven months, and Mr. R pleads guilty less than two months after his arrest.³⁶⁰

Between the guilty plea and sentencing, a court-appointed probation officer orders Mr. R’s criminal case records from California to prepare a presentence report. These records reveal that the two 1995 convictions produced parole violations that ran concurrent with the 1998 robbery sentence. The probation officer concludes that those 1995 convictions should therefore be counted in Mr. R’s 2018 Guidelines calculation, because he was in custody within the relevant timeframe. This has two consequences for the sentence. First, it gives Mr. R six more criminal history points, putting him in the Guidelines’ highest criminal history category. Second, it gives Mr. R a large new pre-first-deportation enhancement under the reentry guideline. The 1995 convictions occurred before Mr. R’s first deportation, so they trigger a separate enhancement from the 1998 sentence. And even though the parole violation ran concurrent with the new robbery sentence, it is added to the 1995 sentence and thus the pre-deportation sentence enhancement.³⁶¹ Based on this calculation, the probation officer concludes that Mr. R’s Guidelines range is 130 to 162 months.

The defense lawyer makes no objections to the probation officer’s conclusions. At the sentencing hearing, the defense lawyer argues that these convictions are quite old and the product of Mr. R’s troubled youth, while today Mr. R is a deeply religious man who works as a Christian pastor. Mr. R complains to the judge that his defense lawyer has not communicated with him about the surprise increase in his sentence. The judge proceeds with sentencing anyway and gives Mr. R ninety-six months in prison.

Subsequent litigation revealed that this Guidelines range was in fact wrong. The 1995 convictions should not have counted for the 2018 Guidelines calculation, because Mr. R’s parole violation sentences were discharged in September 2000. California law provides that a person cannot be kept in custody longer than four years on a parole violation for a noncapital felony.³⁶² This means Mr. R was not in custody on those cases within fifteen years of 2018. But his discharge from parole could only be discovered by looking at prison administrative records kept by the California Department of Corrections. Mr. R’s discharge was noted in pencil on a paper log in his prison file, which could only be obtained through a written request.³⁶³ Because of this error, Mr. R should have been in a lower criminal history category, and he should not have received a pre-deportation felony enhancement. Mr. R’s actual Guidelines range should have been forty-six to fifty-seven months.

This case illustrates several absurdities about unlawful reentry sentencing. First is the strange focus on the timing of the first deportation. Mr. R was deported from the United States multiple times, but his recommended sentence was dramatically increased because his first deportation happened to occur between two felony convictions. Had his first deportation happened before 1995 or after 1998, his Guidelines range would have been at least five years lower.³⁶⁴ Second is the importance of supervision violations. Because they extend the clock on very old convictions, large swings in sentence length can turn on precisely when a probation or parole violation occurred. And because the Guidelines count violations as part of the original conviction, two completely concurrent sentences (one for a new crime and one for a supervision violation) are treated as separate sentences of the same length. Third is how crucial the Guidelines make difficult-to-find state records. Mr. R’s defense lawyer did not know about the parole violations that, according to the probation officer, made the 1995 convictions count against Mr. R in 2018. And neither the lawyer nor the probation officer found the document in Mr. R’s prison file that proved the convictions were, in fact, too old. When large sentence swings turn on the precise details of state cases, defendants are at the mercy of state agencies’ variable recordkeeping practices.

Mr. R’s case is exceptional in some respects, including that his sentence was unusually long for a reentry case.³⁶⁵ But the problems it illustrates are endemic to the reentry guideline. They emerge in one form or another in thousands of cases every year. And his case also follows a familiar pattern for reentry prosecutions. Mr. R spent nearly his entire life in the United States. It is where his family lives and it is the only country he considers home. But he also accumulated a serious criminal record in his late teens and early twenties. Now, as a man in his forties whose entire life is in the United States, he keeps trying to return.³⁶⁶ And, because of the reentry guidelines’ double enhancements, those convictions from his youth keep triggering lengthy sentences every time he comes back.

IV. Sentencing Constitutionalism

This Article has shown that the federal sentencing system discriminates against undocumented immigrants. So what can be done about it? Naturally, Congress could amend the First Step Act so that immigrants receive earned time credit. The Sentencing Commission could also rewrite the reentry guideline to remove its extra criminal history enhancements. Such legislative fixes would be straightforward. This Part will thus focus instead on what can be done by federal judges and the lawyers who appear before them.³⁶⁷ A constitutional Equal Protection challenge seems like an intuitive strategy.³⁶⁸ But that approach faces significant obstacles under current case law. The Supreme Court has disallowed racial disparate impact claims, and it grants the federal government substantial leeway to discriminate by immigration status.³⁶⁹ Such doctrinal hurdles may be surmountable, but advocates challenging these sentencing policies have yet to overcome them.

This Part proposes another approach, herein labeled “sentencing constitutionalism.” The basic idea is that sentencing decisions are less constrained than other judicial decisions. In the sentencing context, judges exercise normative discretion over the size of the punishment and the reasons that justify it. And judges can include amongst those reasons a desire to advance underenforced constitutional norms.³⁷⁰ Because so much deference is built into modern Equal Protection doctrine, many instances of clear discrimination go unremedied in formal constitutional review. Recognizing this, several scholars have developed a theory of “administrative constitutionalism.”³⁷¹ These scholars have observed that executive branch agencies use their policymaking discretion to combat forms of discrimination, such as racial disparate impact, that cannot be remedied in court. Judges should do the same in the immigrant sentencing context. Specifically, judges should counteract the racial and immigration-status-based discrimination built into federal sentencing law by (1) refusing to apply the reentry guideline’s recidivist enhancements, and (2) discounting immigrants’ sentences to account for the fact that they cannot earn First Step Act credits.³⁷² Many federal judges have already embraced this kind of approach in the crack cocaine sentencing context. The crack/powder disparity in federal sentencing law is racially discriminatory, and Equal Protection challenges have entirely failed to remedy it. However, federal judges have somewhat counteracted this discrimination in their sentencing decisions. Numerous judges have explicitly rejected the higher crack guideline as a matter of policy. And overall, federal judges vary downward from the Guidelines range in most crack cocaine cases. This systematic judicial rejection of the crack guideline is motivated by constitutional equality concerns. Judges should do the same with reentry sentences.

A. A Two-Track Model of Equal Protection at Sentencing

Immigrant defendants can challenge the sentencing discrimination described above as violating Equal Protection. This argument can be made as a constitutional challenge to the validity of the laws themselves. It can also be made as a quasi-constitutional appeal to judges’ discretionary sentencing power. The former strategy runs into major obstacles in the form of deference principles established by the Supreme Court. The latter strategy lacks the compulsory force of law, but avoids the limitations of contemporary Equal Protection doctrine. Here both strategies will be explored in turn.

Both the First Step Act and the reentry guideline explicitly discriminate against defendants based on their immigration status.³⁷³ Numerous defendants have argued that these laws are therefore unconstitutional.³⁷⁴ To date, such arguments have not found success. Defendants have been unable to overcome the Supreme Court’s deference to the federal government when it comes to immigration policy. Under the plenary power doctrine, the Court gives Congress and the President broad leeway to enact policies that discriminate by immigration status.³⁷⁵ The Court has directed greater scrutiny at state laws that harm immigrants, but that is not helpful in the federal sentencing context.³⁷⁶ Perhaps more usefully, the Court in Hampton v. Wong did apply heightened scrutiny to federal agency regulations that discriminate against immigrants.³⁷⁷ Wong involved a Civil Service Commission regulation excluding all noncitizens from federal employment.³⁷⁸ The Court applied heightened scrutiny to this regulation, reasoning that the plenary power doctrine does not protect agency rules unless they are mandated by Congress or the President.³⁷⁹ The Court held that when an agency discriminates by immigration status, it must demonstrate both an “overriding national interest” and evidence that the policy was “actually intended to serve” that interest.³⁸⁰ Because the Guidelines are written by an independent agency (the Sentencing Commission), Wong may support a constitutional challenge to the reentry guideline.³⁸¹ The post-deportation enhancement seems especially vulnerable, since it (1) is not connected to Congress’s statutory maximum increase, which applies only to pre-deportation felonies, and (2) does not meaningfully deter reentry because it punishes only post-reentry conduct. Nonetheless, Wong-based challenges to the reentry guideline have yet to find success in court.³⁸²

Defendants could also argue that the reentry guideline and the First Step Act discriminate by race and ethnicity. Nearly every person harmed by these rules is of Latin American ancestry.³⁸³ And policies that discriminate by race are subjected to strict scrutiny.³⁸⁴ The problem, however, is that these rules are facially neutral as to race, and the Supreme Court has foreclosed Equal Protection challenges based on disparate impact claims.³⁸⁵ A law could thus apply against only one race ninety-nine percent of the time and still be upheld in court because it is facially neutral. The Court has carved out one important exception to this rule: under the Arlington Heights test, a formally race-neutral law violates Equal Protection if it was enacted with racist purposes and has a racially disparate impact.³⁸⁶ A defendant could try to bring such a challenge to the First Step Act or the reentry guideline. In the guideline context, this would likely mean emphasizing the racist panic in Florida that gave rise to the double criminal history enhancements. In the First Step Act context, it would mean focusing on the Trump Administration’s 2018 nativism. However, Arlington Heights challenges face two significant hurdles. First is the problem of proving intent—federal courts adopt a strong presumption that government action is not racially motivated.³⁸⁷ Second is the problem of reenactment—if a rule is enacted for discriminatory reasons at Time One, and then reenacted for different reasons at Time Two, courts often treat Time Two as decisive. For example, many defendants have argued that the unlawful reentry statute is itself unconstitutional due to its racist history.³⁸⁸ While federal courts have largely conceded that the law’s original enactment was racist, they have unanimously upheld the law because it was later reenacted.³⁸⁹

Modern Equal Protection doctrine thus erects significant barriers to immigrants’ antidiscrimination claims. While these barriers may be surmountable in some cases, they significantly limit the potential of constitutional challenges against the First Step Act and the reentry guideline. Another option would be to appeal to district judges’ sentencing discretion. After Booker, sentencing judges do not have to follow the Guidelines.³⁹⁰ They can sentence a defendant anywhere within the statutory range, subject only to deferential appellate review for reasonableness.³⁹¹ Because the judge is the key decisionmaker at sentencing, rather than Congress or the executive, the deference doctrines discussed above lack purchase. A judge can use their discretion to counteract race-based and immigration-status-based discrimination built into the federal sentencing rules. And judges should do so to vindicate a constitutional equality norm that, because of those deference doctrines, goes widely underenforced.³⁹² Constitutional norms can thereby have wider play in the discretionary sentencing context than they do in the judicial review context. This idea will here be called “sentencing constitutionalism.”

Administrative constitutionalism is a close analogue to sentencing constitutionalism. In numerous contexts, scholars have observed administrative agencies using their policymaking discretion to advance constitutional norms beyond the level required by courts. For example, in the 1960s both the Federal Communications Commission and the Federal Power Commission interpreted the Equal Protection Clause as requiring regulated companies to achieve racial equality in employment.³⁹³ In the 1940s and 1950s, the Federal Social Security Board enforced an Equal Protection norm safeguarding the welfare rights of the poor.³⁹⁴ During the Obama Administration, the Department of Housing and Urban Development adopted rules requiring recipients of federal funding to affirmatively reduce racial housing disparities.³⁹⁵ And, in the criminal justice context, contemporary federal (and some state) prosecutors have adopted a wide array of self-limiting rules that protect defendants’ constitutional rights beyond what courts require.³⁹⁶ In these examples and others, agencies go above the floor set by judicial doctrine and implement a more robust vision of constitutional rights. They do so through their own discretionary rulemaking authority. Judges, when they sentence defendants, operate in a similar context. Deference doctrines like plenary power over immigration, the prohibition on disparate impact claims, and others lack purchase because judges are themselves determining sentences. So long as they do not violate the law, judges can go above the constitutional floor just as agencies have.³⁹⁷ Policymaking discretion thus lets them implement constitutional antidiscrimination norms to a greater degree than formal doctrine requires.

Sentencing constitutionalism is also similar to the concept of an imperfect defense.³⁹⁸ In criminal trials, defenses are binary. The judge either will or will not let the defendant argue a defense, and the jury either will or will not acquit based on a defense. Because a successful defense exonerates completely, the formal elements of defenses are often written quite narrowly. The federal duress defense, for example, only applies where the defendant faces an “immediate threat of death or serious bodily injury.”³⁹⁹ The most common version of the insanity defense is limited to situations where the defendant either (1) did not know what they were doing or (2) was incapable of understanding that their action was wrongful.⁴⁰⁰ And California’s entrapment defense only applies where the police conduct would cause a “normally law-abiding person” to commit the crime.⁴⁰¹ Because these and other defenses are defined narrowly, they fail to exonerate the defendant in many cases where it seems like they should apply. Take, for example, someone who committed a crime on the orders of their abusive partner, but was not in immediate peril at the time of the crime. That person will not satisfy the elements of a duress defense, even though the moral purpose underlying the defense clearly applies.⁴⁰² In cases like these, many U.S. jurisdictions lower the defendant’s sentence to account for the “imperfect” defense.⁴⁰³ The Federal Sentencing Guidelines, for example, enumerate imperfect duress as a reason for downward departure.⁴⁰⁴ Several federal circuits have also recognized imperfect entrapment as a legitimate basis for downward departure.⁴⁰⁵ And numerous states’ sentencing statutes specifically list imperfect defenses as mitigating factors.⁴⁰⁶ Such imperfect defenses are structurally similar to sentencing constitutionalism. Both involve situations where a defendant’s legal argument has strong moral force (e.g., a duress defense or discrimination claim). However, the argument fails in court for technical reasons (e.g. the defense is too narrowly defined, or the discrimination claim is denied out of deference and administrability concerns). In such circumstances, judges can use their sentencing discretion

to compensate for the narrowness of formal law. They can lower a defendant’s sentence to account for the injustice that otherwise goes unremedied.⁴⁰⁷

Sentencing constitutionalism also finds conceptual support in Justice Anthony Kennedy’s concurrence in Beckles v. United States.⁴⁰⁸ In Beckles, the Supreme Court held that defendants cannot bring constitutional vagueness challenges to the Sentencing Guidelines.⁴⁰⁹ The majority reasoned that because the Guidelines are purely advisory post-Booker, they do not raise the same due process concerns as a vague criminal statute.⁴¹⁰ Justice Kennedy wrote separately to note that constitutional vagueness challenges should still have a place in discretionary sentencing decisions. However, he posited that “the realm of judicial discretion in sentencing” required “some other explication of the constitutional limitations.”⁴¹¹ He thus suggested that the Constitution should be operationalized differently at sentencing. That is also the intuition behind sentencing constitutionalism. Indeed, Kennedy’s reasoning could cover a variety of criminal procedure rights that do not normally apply at sentencing.⁴¹² The right to confront witnesses, the prohibition on double jeopardy, the right not to be punished for acquitted conduct, the privilege against self-incrimination, and other constitutional principles can be incorporated into the discretionary sentencing context (perhaps in a modified form with more judicial flexibility).⁴¹³ This would particularly make sense in the federal system, where trials have all but disappeared and there is far more litigation at sentencing than at the guilt-or-innocence phase.⁴¹⁴ Thus sentencing constitutionalism, in addition to providing an alternative remedy for Equal Protection claims, might also bring some of the Constitution’s criminal procedure architecture into the sentencing process.

B. Sentencing Constitutionalism and The Crack/Powder Disparity

The history of federal crack cocaine sentencing provides a real-world case study of sentencing constitutionalism. The story begins in 1986, with the tragic death of a basketball player named Len Bias. Bias died after using cocaine on the night he was drafted into the NBA.⁴¹⁵ The public reaction to his death launched a nationwide media-driven moral panic over crack cocaine.⁴¹⁶ This panic had a clear racial dimension, as crack cocaine abuse was widely perceived to be an epidemic amongst African-American individuals.⁴¹⁷ Politicians and the wider public feared that crack use was spreading from the inner cities to suburbia.⁴¹⁸ For example, Senator Lawton Chiles inserted a Florida newspaper article into the Congressional Record that reported: “Less than a block from where unsuspecting White retirees play tennis, bands of young Black men push their rocks on passing motorists, interested or not.”⁴¹⁹

Responding to this panic, Congress enacted the Anti-Drug Abuse Act of 1986.⁴²⁰ Senator Chiles was one of the “prime movers” behind the law.⁴²¹ It created new mandatory minimum penalties for federal drug trafficking crimes, which were triggered by a much lower quantity of crack than of powder cocaine. The law provided a ten-year mandatory minimum sentence for crimes involving five kilograms of powder cocaine, but just fifty grams of crack.⁴²² Similarly, it provided a five-year mandatory minimum for 500 grams of powder but just five grams of crack.⁴²³ This 100-to-1 ratio was not the product of any systematic study of the drugs’ relative effects—Congress’s factfinding process was perfunctory.⁴²⁴ Rather, legislators engaged in a one-way auction, ratcheting up the crack cocaine penalties in a competition to show which party could look tougher.⁴²⁵

The higher penalties for crack had a clear disparate impact on African American defendants. In 1993, 88.3% of federal crack cocaine defendants were Black and only 4.1% were White.⁴²⁶ By comparison, powder cocaine defendants were 27.4% Black and 32% White.⁴²⁷ The average federal drug sentence for a Black defendant went from 11% higher than that of a White defendant in 1986 to 49% higher four years later.⁴²⁸ Black defendants sentenced under the new law brought Equal Protection challenges, arguing that this crack/powder disparity was racially discriminatory. Such Equal Protection claims succeeded, albeit temporarily, in only two cases. Judge Clyde Cahill of the Eastern District of Missouri struck down the crack/powder disparity on Equal Protection grounds, finding that the 1986 Congress was motivated by unconscious anti-Black racism.⁴²⁹ Judge Cahill’s ruling was then reversed by the Eighth Circuit.⁴³⁰ The Minnesota Supreme Court also struck down a state statute creating higher penalties for crack than powder cocaine, concluding that it violated the state constitution.⁴³¹ The Minnesota legislature responded by increasing the penalties for powder cocaine to match those of crack.⁴³² Beyond those two outliers, such Equal Protection challenges failed. The federal courts of appeal unanimously upheld the disproportionate punishment of crack defendants.⁴³³ As the Fourth Circuit explained: “[T]here is evidence that the line Congress and the Sentencing Commission have drawn has a disproportionate impact upon blacks. But this is not sufficient to make out an Equal Protection violation.”⁴³⁴

When the Sentencing Commission published the first Guidelines Manual in 1988, it based drug trafficking sentences on the mandatory minimums set by Congress.⁴³⁵ The centerpiece of the drug trafficking guideline is a “Drug Quantity Table” that specifies the defendant’s base offense level.⁴³⁶ This Table gives the defendant an offense level between six and thirty-six depending on the type and amount of drug involved in the crime. Following Congress, the Commission set the amount of crack cocaine corresponding to each level on the Table at 1/100th the amount of powder cocaine at that same level. So, for example, a defendant would have a base offense level of 28 for 2.0–2.9 grams of crack cocaine or 200–299 grams of powder cocaine.⁴³⁷ This gave defendants with crack much higher sentences than defendants with an equivalent amount of powder. Appeals courts rejected defendants’ Equal Protection challenges to the Guidelines, using the same reasoning that they applied to the underlying statute.⁴³⁸ In 1995, the Sentencing Commission attempted to change the drug guideline in order to reduce the gap between crack and powder cocaine sentences.⁴³⁹ Congress, however, exercised its veto power over Guidelines amendments to keep the disparity in place.⁴⁴⁰

Then, in the 2005 case United States v. Booker, the Supreme Court made the Guidelines advisory.⁴⁴¹ This meant district judges could now choose to disregard the Guidelines and sentence defendants anywhere within the relevant statutory range. Federal judges soon took advantage of this new discretion to mitigate the crack/powder disparity. Citing racial discrimination concerns, numerous judges began to systematically sentence defendants below the Guidelines range in crack cocaine cases.⁴⁴² One such judge noted that “[t]his Court’s conclusion that a non-Guideline sentence is called for is . . . supported by the vast majority of district courts that have evaluated the crack/powder cocaine sentencing disparity in the wake of Booker.”⁴⁴³ The Supreme Court then confirmed judges’ power to categorically reject the crack cocaine guidelines in two decisions: Kimbrough v. United States and Spears v. United States.⁴⁴⁴ The Court also singled out the crack guideline for criticism in Kimbrough, noting that it was based solely on the mandatory minimums in the 1986 law, not on any empirical study of drug crimes or drug sentencing.⁴⁴⁵ Since then, judges have increasingly used their discretion to lower crack cocaine sentences. The Sentencing Commission’s statistics show that the rate of below-Guideline sentences in crack cases has consistently been the highest of all major drug types.⁴⁴⁶ The rate of downward variances has also steadily risen since Booker, and today more than half of all federal crack cocaine sentences are below the relevant Guidelines range.⁴⁴⁷

This history is a real-world example of sentencing constitutionalism. The crack/powder sentencing disparity is clearly racially discriminatory. It was produced during a racialized moral panic over Black drug use, and it disproportionately burdens Black defendants. Due to the hollowed-out nature of Equal Protection doctrine, defendants were unable to convince judges to declare the crack/powder disparity unconstitutional. However, some judges have exercised their sentencing discretion to lessen the constitutional harm.

Judges should do the same thing in unlawful reentry cases. Indeed, there are deep parallels between crack cocaine sentencing and unlawful reentry sentencing. Both involve formally neutral guideline provisions that produce overwhelming disparate impacts according to race and ethnicity. Neither guideline provision was the product of any systematic study by the Commission. Both were essentially copied from recently enacted statutes that increased the punishment ranges. In both cases, the underlying statute was enacted during a racialized moral panic in the 1980s. Both statutes were championed by the same Senator (Lawton Chiles), indeed both were even enacted through bills with the title “Anti-Drug Abuse Act.” And constitutional Equal Protection challenges to both statutes have failed in the federal courts. The major difference is that judges have systematically used their discretion to mitigate sentencing discrimination in crack cocaine cases. They have not yet done so in unlawful reentry cases.

Conclusion

This Article has shown that federal sentencing laws explicitly discriminate against undocumented immigrants. The Sentencing Guidelines give them duplicative recidivism enhancements that do not apply to U.S. citizens. The First Step Act denies them sentence reductions that U.S. citizens receive. This discrimination contributes to a racial and nationality-based hierarchy in the federal criminal justice system. Undocumented immigrants, nearly all of them Latin American, prosecuted for entering the United States, are treated as a legal underclass. They are punished more severely for past crimes and granted less mercy for current rehabilitation. Fortunately, federal district judges can help counteract this discrimination. Sentencing judges have the power to disregard the Guidelines’ duplicative enhancements. They also have the power to correct for immigrants’ exclusion from in-custody sentence reduction programs. For nearly twenty years, judges have mitigated a similar injustice in crack cocaine cases by systematically lowering sentences. They have done so out of recognition that the sentences for crack cocaine are racially discriminatory, and that this discrimination has gone unremedied in ordinary litigation. Judges should do the same for undocumented immigrants.

Appendix

99 S. Cal. L. Rev. 291

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Eric S. Fish*

*Professor of Law, University of California at Davis. For their invaluable help the author would like to thank Jessie Agatstein, Elizabeth Arford, Amber Baylor, Marcus Bourassa, Jack Chin, Haiyun Damon-Feng, Ingrid Eagly, Sheldon Evans, Jailene Gutierrez, Deborah Kang, Doug Keller, Litzy Martinez Rodriguez, Emmanuel Mauleon, Sean McGuire, Jacob Schuman, Rory Van Loo, Charles Weisselberg, Rebecca Wexler, and the participants in Crimfest, Southwest Crim, the Yale Law PhD program colloquium, and faculty workshops at the University of California Irvine and the University of California Berkeley. Thank you also to the editors of the Southern California Law Review for their excellent editorial work.

Broken Records: Evidentiary Failures in Expedited Removal and Credible Fear Reviews

February 2026February 2026Luna Gibbels*

Expedited removal, a process allowing for the swift deportation of noncitizens without a full hearing, has become a central mechanism in U.S. immigration enforcement. Although the process was designed to expedite removals, it is riddled with evidentiary and procedural deficiencies that undermine asylum seekers’ rights. This Note examines how systemic flaws in record development during initial “credible fear” screenings—such as officer misconduct, language barriers, and trauma—skew credible fear determinations, leading to erroneous deportations. It further critiques the limited reviewability of negative credible fear findings, highlighting inconsistencies among immigration judges regarding the admission of new evidence, credibility assessments, and access to counsel. Additionally, it argues that the “entry fiction” doctrine, which purports to justify the lack of due process protections in expedited removal, is fundamentally incompatible with U.S. asylum law, due process, and non-refoulement obligations. To address these deficiencies, this Note proposes key reforms to credible fear review: (1) requiring immigration judges to allow new evidence and testimony; (2) utilizing a framework adopted by the Seventh Circuit in Jimenez Ferreira v. Lynch for assessing credibility; and (3) guaranteeing a right to counsel during review proceedings. These changes are necessary to align expedited removal with U.S. asylum law, safeguard due process, and prevent the wrongful deportation of bona fide asylum seekers.

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A Whole-of-Government Approach to Protect Unaccompanied Children from Labor Exploitation

July 2025July 2025Charlie Murphy*

A sharp rise in illegal child labor and an influx of unaccompanied migrant children into the United States combined to dominate headlines in 2023. Despite federal authorities placing migrant children in sponsor care, reports detailed such children being exploited in hazardous occupations across the country, with some losing their lives. An aging patchwork of federal immigration and labor laws and underfunded enforcement agencies have left an incredibly vulnerable subset of children at risk of exploitation or worse, and congressional action is needed to ensure that sponsored children are properly cared for and kept out of hazardous workplaces. While the federal government’s processing of unaccompanied children and illegal child labor have been separately examined by scholars, there is a glaring lack of scholarship on how the gaps in the immigration system and federal labor law combine to put unaccompanied minors at a greater risk of labor exploitation. This Note argues that the federal government must comprehensively update existing immigration and labor laws and increase interagency coordination to lower the risk of labor exploitation for unaccompanied children. If the United States wants to fulfill a humanitarian mission of caring for unaccompanied children, it must take responsibility for every child’s wellbeing throughout their immigration journey by taking a whole-of-government approach to the problem.

Introduction

News reports broke midway through the Biden presidency detailing shocking and troubling findings of migrant children working in punishing and dangerous jobs across the United States in violation of federal law. One report detailed the experience of a migrant child named Antonio, a fourteen-year-old who had left his home in Guatemala and made the perilous trek north to the United States.¹ After arriving at the U.S. border alone, the U.S. government placed Antonio into its custody in a shelter for several weeks until a former neighbor residing in Florida agreed to sponsor him while Antonio made his way through the immigration system. Upon his release to the sponsor, Antonio enrolled in the eighth grade and went to work for anyone who would hire a child without a work permit. Work took priority, and Antonio soon stopped attending school in order to survive. While sponsors of undocumented children are supposed to provide for the children in their care, Antonio’s sponsor instead kept track of the costs required to transport, house, and feed Antonio and required him to pay that money back, which took a year of work. Antonio cleaned houses, landscaped, and packed vegetables overnight. He worked for companies that claimed not to hire minors. He did not stay in his sponsor’s care long, instead living in apartments with several other people. Rather than attend school like other children, Antonio was forced to support himself. He now lives in a neighborhood in which children as young as twelve years old work in hazardous occupations such as construction in order to survive.²

Antonio’s story is a common one. Children who arrive at the U.S. border alone often find themselves forced to work rather than attend school in order to survive or pay off debts that sponsors or other parties impose on them, creating a real risk of child labor exploitation or even labor trafficking. “Labor exploitation” is an oft-used term without an exact definition, but as used in this Note, it generally describes employers committing workplace violations for profit, usually by scheduling employees for excessively long hours, underpaying them in violation of law, or disregarding safety rules and regulations meant to protect workers.³ “Labor trafficking” is a crime in which traffickers force people to work while taking the fruits of workers’ labor for themselves.⁴ Labor trafficking turns on an element of force, fraud, or coercion, by which labor exploitation is elevated from harmful, but possibly blameless, conduct to criminal and morally reprehensible behavior.⁵ Unaccompanied children are meant to be protected from such abuses in the United States by federal immigration and labor law.⁶

When children arrive at the U.S. border without permission to enter the country, they are apprehended and detained, usually by United States Customs and Border Protection (“CBP”).⁷ Children with no parent or legal guardian present are separated from whoever they are with and held in temporary facilities made for adults. They are then questioned by federal agents and, if found to be unaccompanied, are transferred to the custody of the Department of Health and Human Services’ (“HHS”) Office of Refugee Resettlement (“ORR”). In ORR custody, children are put into some form of group facility with other children, generally for about thirty days. ORR houses and feeds these children, and case managers eventually speak with each child to determine a suitable sponsor for the child to be placed with. While finding sponsors, the U.S. government enters each child into formal removal proceedings, unless a child asks to be repatriated.

ORR screens each potential sponsor, but screening requirements often change with presidential administrations or with a rise in the backlog of children in federal custody. Changes in sponsor screening can affect the length of time that children are in ORR custody, which is particularly problematic given that longer stays in government custody can cause lasting trauma to children. With a backlog of children in federal custody upon taking office in 2021, the Biden administration pushed to release children as quickly as possible to sponsor homes and lowered the hurdles that sponsors must clear when applying to ORR’s Unaccompanied Alien Children Bureau (“UAC Bureau”), the federal program that places unaccompanied children in sponsor homes.⁸ In its haste, the administration may have unintentionally increased the risk of unaccompanied children landing in unsuitable environments in which labor exploitation or trafficking can occur.

In the best-case scenario, ORR places a child with a sponsor that the child knows, such as a parent or family member, who will properly care for them and enroll them in school while the child’s immigration proceedings play out. The worst-case scenario is that the child is placed with a sponsor whom they have never met, who will take advantage of the child financially or otherwise. In this worst-case scenario, sponsors might charge children for basic expenses like rent, food, clothing, and school supplies, essentially forcing the child to work after school (or in lieu of attending) to repay their debt.⁹ Worse, the sponsor may force the child to work and take the child’s entire earnings for themselves. Migrant children who must work often find themselves in workplaces considered dangerous by the federal government, even for adults.¹⁰ These children may not make enough money to pay their debts working normal shifts after school hours, so they may work overnight shifts or stop attending school altogether to work full-time. In such workplaces, child workers have been injured, maimed, and killed while working in violation of federal labor law.¹¹ Despite the risk, the harsh reality is that many unaccompanied children feel they have to work due to their vulnerable circumstances. What choice do they have otherwise?

The scenario described may seem horrific, or even unrealistic, but it has happened repeatedly in the United States. While such stories surface in the news annually, Congress finally put a renewed focus on the issue of child labor in 2023 after Hannah Dreier’s reporting in The New York Times detailed just how widespread the issue of migrant children working in dangerous American workplaces is.¹² Some migrant children have allegedly been trafficked into forced labor, and multiple federal agencies have been criticized for failing to adequately prevent or respond to the risk these children face, particularly ORR and the Department of Labor (“DOL”). Exposés like Dreier’s have cropped up amidst an unprecedented spike in unaccompanied children arriving at the U.S.-Mexico border, a spike that strained the government’s ability to adequately care for unaccompanied children. Particularly concerning to some members of Congress and the public was an allegation that ORR was unable to get in touch with over 80,000 unaccompanied children that the agency had released from its custody into sponsor homes.¹³ ORR’s inability to get in touch with tens of thousands of children coincided with a dramatic surge in documented cases of illegal child labor nationwide. Although congressional Republicans and Democrats held hearings with ORR and DOL officials to understand why children could not be contacted and why child labor violations were increasing,¹⁴ there was little in the way of a coordinated government response to deal with these crises as related issues that may increase the risk of unaccompanied children being exploited for their labor.

Encouragingly, in 2023, ORR and DOL agreed to share information in an effort to jointly combat child labor trafficking and exploitation.¹⁵ But between ORR’s limitations in providing post-release services to children paroled into sponsor care and DOL’s lack of resources and relatively toothless enforcement options, migrant children still have inadequate protections and can fall prey to labor trafficking or exploitation. While some scholarship exists on the inadequacies of the UAC Bureau,¹⁶ few if any scholars have focused on how gaps in immigration law and federal labor law combine to increase the risk of exploitation to unaccompanied children. This Note aims to fill the gap in current scholarship relating to unaccompanied children by undertaking a novel and holistic review of both federal immigration law and labor law. The aim is to identify gaps in both areas of law that contribute to the risk of unaccompanied children being exploited for their labor by either their sponsors or irresponsible employers and discuss how these areas can be addressed in a comprehensive manner to lower that risk of harm.

This Note attempts to make sense of the various statutes, regulations, and government agencies that are meant to protect migrant children in different ways and argues for a coordinated, whole-of-government approach to minimize the risk that unaccompanied children fall into labor exploitation. While this Note touches on labor trafficking, its main focus is labor exploitation, as there is no comprehensive source of reliable data on labor trafficking among unaccompanied minors. Part I of this Note begins by quantifying the historic levels of unaccompanied minors arriving at the U.S. border since 2019 and explores the shifting immigration policies and rationales that have contributed to the crisis. Part II explains the legal foundation governing the apprehension of unaccompanied minors and discusses ORR’s role in placing minors into custody. Part III examines child labor violations nationwide and delves into the legal framework that is supposed to protect children from being exploited in the workplace. Part IV analyzes the current failings of both federal immigration law and labor law to protect unaccompanied children and offers possible solutions that can minimize the risk of exploitation for these children. The Note concludes by laying the groundwork for future discussion.

By addressing the labor exploitation of unaccompanied children through a multipronged review of separate but overlapping areas of law, this Note endeavors to change the discourse surrounding the federal government’s approach from a conversation of unilateral federal agency failures to one that discusses how our patchwork system of laws can be updated to best serve the needs of unaccompanied children. The Biden administration correctly approached influxes of unaccompanied minors with a humanitarian focus, but federal law needs to be updated to ensure that the federal government takes full responsibility for ensuring the safety of each child it welcomes into the country.¹⁷

I.A Historic Influx of Unaccompanied Children

Before exploring what happens when unaccompanied children enter the United States, it is important to highlight who these children are, where they come from, why they flee their homes, and what happens when they encounter border authorities in the United States. To begin, a migrant child who arrives at the U.S. border unaccompanied by a parent or guardian is referred to by CBP as an “unaccompanied alien child,” or “UC,” for short.¹⁸ A UC is statutorily defined as a child under eighteen years old who has no lawful immigration status in the United States and who either has no parent or legal guardian accompanying them into the United States or has no parent or guardian who can provide immediate care and physical custody.¹⁹ From 2010 until 2019, CBP apprehended an average of 43,425 unaccompanied children per year at the U.S. border, with nearly all of those apprehensions occurring at the Southwest border.²⁰ The number of apprehensions trended upward over that ten-year span, hitting a then-record high of 76,136 during the first Trump presidency in 2019.²¹ Decreased migration and public health border enforcement during the COVID-19 pandemic led to a sharp downturn in apprehensions in 2020, but since 2021, there has been a massive spike in the number of unaccompanied children arriving at the U.S. border, with an average of 130,122 CBP apprehensions per year.²² This average nearly doubles the pre-pandemic record high for apprehensions of unaccompanied children in a single year.

The majority of unaccompanied children are consistently aged between fifteen and seventeen years old.²³ For years, most unaccompanied children arrived from Mexico, but that majority has shifted dramatically over the last ten years to the Northern Triangle countries of El Salvador, Guatemala, and Honduras.²⁴ Regardless of country of origin, similar explanations underlie why migrant children are traveling to the U.S. border en masse. Many migrant children seek economic opportunity, which has always been a factor driving immigration, but many others flee extreme violence, poverty, and ecological disaster.²⁵ Others are driven by a desire to reunite with family already in the United States, with an estimated 80% of unaccompanied children having at least one family member in the country as of 2021.²⁶ While some politicians and pundits may try to ascribe nefarious motives to the spike in migration, there are usually reasonable economic and socio-political explanations for why children arrive at the U.S. border.

Where an unaccompanied child is from makes a large difference in what happens when they encounter border officials. Under the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”),²⁷ children arriving from noncontiguous countries such as El Salvador, Guatemala, and Honduras are usually detained by CBP and transferred into the custody of ORR.²⁸ Once transferred, these children are put into formal removal proceedings and given an opportunity to seek different forms of immigration relief, such as asylum.²⁹ In contrast, children arriving from Mexico or Canada are usually repatriated immediately, so long as they are not trafficking victims and raise no fear of persecution upon return to their home countries.³⁰

Waves of unaccompanied minors arriving at the U.S. border have challenged the last four presidential administrations. Fearing that children were being trafficked into the United States, the George W. Bush administration passed the TVPRA in 2008, which barred the quick deportation of unaccompanied minors from countries other than Mexico.³¹ The Obama administration used the TVPRA to greatly expand the government’s ability to respond to unaccompanied arrivals, housing children in temporary camps on military bases and spending billions of dollars expanding a network of shelters that ORR could place unaccompanied children into while they awaited placement in the United States.³² The Trump administration responded to surges in arrivals in 2019 and 2020 by trying to limit both legal and illegal immigration, focusing on deterrence through family separation policies and the solicitation of Congress for funds to erect a border wall, all while allowing ORR’s shelters to fill near capacity.³³ When the COVID-19 pandemic struck in 2020, the Trump administration seized on a Center for Disease Control and Prevention (“CDC”) public health order called Title 42 to promptly deport most unaccompanied children detained by CBP to Mexico, in violation of the TVPRA.³⁴ The use of Title 42 cut encounters with unaccompanied children at the southern border by more than half,³⁵ but left kids to fend for themselves along the U.S.-Mexico border. In 2021, the Biden administration reversed course, formally exempting unaccompanied minors from Title 42 expulsions and requiring that they be processed under the TVPRA’s Title 8 procedures.³⁶ Unaccompanied minor apprehensions rebounded in 2021 to what was then a new record high of 140,191, before jumping again in 2022 to 149,086.³⁷

Whether any executive policy has been particularly effective in properly addressing surges in unaccompanied-minor arrivals is up for debate. The Trump administration’s hardline policies against immigration lessened the number of encounters with unaccompanied minors, but a survey of Central American children in transit revealed that 66% would try to flee their country again if detained and deported by the U.S. government,³⁸ showing that hardline tactics are not likely to stop unaccompanied children from arriving at the U.S. border. The Obama and Biden administrations took a two-pronged humanitarian approach by housing minors in shelters as a short-term solution with a goal of family reunification or sponsor placement, while attempting to address the root causes of immigration by working with foreign governments to dissuade foreign citizens from immigrating and providing legal pathways for children to apply for entry into the United States without arriving at the border unannounced.³⁹ While the Obama and Biden approaches were humanitarian in nature, such approaches were also unlikely to disincentivize children from traveling to the border.

This Note is not meant to tackle the root causes of child migration or question whether the U.S. border should be accessible or closed to migrant children. Whether increased child migration is driven by violence, poverty, ecological disaster, economic opportunity, or governmental policy, it almost certainly will persist. Rather, this Note recognizes that unaccompanied minors are uniquely vulnerable to labor exploitation and trafficking and that current U.S. law is ill equipped to protect children from such realities. The question is, how can current legal structures be changed or improved to handle arrivals of unaccompanied minors in a way that best meets the needs of such children?

II.The Legal Foundation Underpinning ORR’s Apprehension, Custody, and placement of Unaccompanied Children

The apprehension and administrative processing of unaccompanied children is governed by a court settlement known as the Flores Settlement Agreement of 1997 (“Flores Agreement”), the Homeland Security Act of 2002 (“HSA”), the TVPRA, and various regulations. Understanding the legal foundation underpinning the UAC Bureau is critical to evaluating the gaps in the system that expose unaccompanied minors to a greater risk of labor exploitation.

A.The Flores Settlement Agreement of 1997

The modern-day treatment of unaccompanied children detained by the government was largely shaped by the Flores Agreement. The Flores Agreement resulted from a class action lawsuit between the former Immigration and Naturalization Service (“INS”) and two organizations representing the legal interests of immigrant children held in INS detention. The lawsuit was brought on behalf of detained children who were held in “suboptimal conditions” and “subjected to daily strip searches by immigration officers.”⁴⁰ In 1984, the INS “adopted a policy prohibiting the release of detained minors to anyone other than ‘a parent or lawful guardian, except in unusual or extraordinary cases.’ ”⁴¹ These children were held in government detention despite many having other adult family members who were willing to care for them while their immigration proceedings played out.⁴²

In 1997, the plaintiff class and the government reached a settlement which set out a nationwide policy governing the detention, release, and treatment of minors in INS custody.⁴³ The settlement required the humane treatment of migrant children held in federal custody⁴⁴ and created a presumption in favor of release and family reunification for minors who were not at risk of missing appearances in immigration court or whose safety did not need to be ensured.⁴⁵ Under the agreement, minors were to be released from INS custody, in order of preference, to (1) a parent, (2) a legal guardian, (3) an adult relative, (4) an adult individual or entity designated by the parent or legal guardian, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody.⁴⁶ Unreleased children were to be placed in a state-licensed and non-secure program that provided residential, group, or foster-care services for children.⁴⁷

While the district court that approved the Flores Agreement continues to monitor the federal government’s compliance with its terms,⁴⁸ developments in statutory law (particularly the passage of the HSA and TVPRA) and federal regulations have changed the structure of U.S. immigration and modified the Flores Agreement’s nationwide policy regarding the detention and release of minors held in government custody.

B.The Homeland Security Act of 2002

The HSA abolished the INS and created the Department of Homeland Security (“DHS”) to fulfill most of INS’s functions,⁴⁹ including immigrant detention and removal responsibilities.⁵⁰ Importantly, section 462 of the HSA transferred INS’s jurisdiction over unaccompanied children to ORR.⁵¹ Section 462(b)(1) made ORR responsible for “the care and placement of unaccompanied alien children,” requiring the agency to consider the interests of each child when making care and custody decisions and make placement determinations for every unaccompanied child in federal custody by reason of immigration status.⁵² The HSA defined “unaccompanied alien children” as children under eighteen years of age who have no lawful immigration status and no accompanying parent or guardian present in the United States⁵³ and defined the term “placement” as the “placement of an unaccompanied child in either a detention facility or an alternative to such a facility.”⁵⁴ ORR inherited both INS’s custodial responsibilities and its responsibilities arising under the Flores Agreement, specifically the mandate to place unaccompanied minors into the care of a suitable sponsor, per the list of placement preferences.

C.The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Congress enacted the TVPRA, in part, to address concerns that unaccompanied minors in government custody were being inadequately screened for evidence of human trafficking.⁵⁵ The TVPRA builds on the HSA and requires that the Secretary of Homeland Security develop policies and procedures to ensure that unaccompanied children are safely repatriated to their country of nationality or to the last country they lived in.⁵⁶ Section 235 of the TVPRA lays out “special rules” allowing children from contiguous countries (Mexico and Canada) to be safely repatriated to their country of origin or last habitual residence.⁵⁷ Under section 235(a), an immigration officer may remove an unaccompanied child appearing at a land border or U.S. port of entry from the country so long as the child is from a contiguous country, has not been nor is at risk of being a victim of a severe form of human trafficking, and does not have a credible fear of persecution in their home country, and so long as the child is allowed to make an independent decision to withdraw their application for admission to the United States.⁵⁸ Children must be screened for evidence of trafficking or persecution within forty-eight hours of apprehension.⁵⁹

Unaccompanied children from noncontiguous countries, like those comprising the Northern Triangle, must be transferred to ORR’s custody within seventy-two hours, consistent with the HSA.⁶⁰ The Secretary of HHS, in collaboration with the Secretary of Homeland Security, Attorney General, and Secretary of State, is tasked with promulgating policies and programs for ORR to follow to ensure that unaccompanied children are “protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.”⁶¹ Importantly, children in ORR’s care and custody are to be promptly placed in the “least restrictive setting that is in the best interest of the child.”⁶² The least restrictive setting requirement works hand in hand with the HSA requirement of sponsor placement and prevents children from being held in government detention indefinitely while awaiting their immigration hearings.

The TVPRA directs ORR to find each child a suitable sponsor who is capable of providing for the child’s physical and mental well-being.⁶³ ORR is tasked with verifying a sponsor’s identity and relationship to the child and is responsible for ensuring that a sponsor has not engaged in any activity that would signal potential risk to the child.⁶⁴ ORR must also determine whether a study of the sponsor’s home is necessary before placement, which is required for children who were victims of severe forms of trafficking or of physical or sexual abuse, who have disabilities, or whose proposed sponsors clearly present a risk of “abuse, maltreatment, exploitation, or trafficking.”⁶⁵ After placement, the TVPRA requires ORR to conduct “follow-up services” only for children for whom a home study was conducted, but ORR is authorized to conduct such services for children who could “benefit from ongoing assistance from a social welfare agency.”⁶⁶ What follow-up services entail is not defined in the law, nor is there guidance as to which children would benefit from ongoing assistance, leaving ORR with discretion unless directed otherwise. Put another way, if no home study is performed, ORR has no responsibility under the TVPRA to follow up with a child whom it placed into a sponsor’s care.

D.ORR’s Role in Child Custody and Placement

As laid out in the HSA and TVPRA, ORR is the branch of HHS tasked with caring for and placing unaccompanied minors into sponsor homes. Those two statutes, and by extension, the Flores Agreement, provide the legal basis for ORR’s UAC Bureau, which puts the statutory schemes of child detention and placement into practice. Exploring the reality of the UAC Bureau, including how and where children are actually placed and what occurs after placement, is essential to understanding how immigration law and ORR practices place migrant children at an increased risk of labor exploitation.

The majority of unaccompanied children are referred to ORR’s UAC Bureau after being apprehended by DHS border patrol officers, with some children referred by other federal agencies in rare circumstances.⁶⁷ When a child is referred to ORR, ORR obtains background information on the child from the referring agency and attempts to determine the most appropriate and least restrictive setting in which to hold the child until a sponsor determination is made.⁶⁸ Settings may include a shelter facility, foster care or group home, staff secure or secure care facility, residential treatment center, or other special needs care facility.⁶⁹ In moments of high influx, settings have included temporary influx care facilities (“ICFs”), in which hundreds or thousands of children can be kept, usually on army bases or in remote locations.⁷⁰

The initial setting that children are held in is part of the problem with ORR’s UAC Bureau. While some shelters are appropriate for children, the use of ICFs is controversial due to the “facilities’ large sizes, remote locations, durations of stay, and processes for transferring children to the facilities.”⁷¹ ORR internal reports have revealed thousands of allegations of sexual abuse and harassment in ICFs and identified shortcomings for reporting such incidents within ORR’s shelter network.⁷² Even in smaller settings, children are often traumatized by their stays in government custody. Minors are often surrounded by strangers and limited to two short phone calls per week with family members or potential sponsors, facing a lack of caregiver support that can cause toxic stress in children.⁷³ Studies have shown that children detained in federal custody can suffer from “high rates of PTSD, anxiety, depression, and suicidal ideation.”⁷⁴ Thus, the longer children are detained, the more likely they will suffer harm of some sort. As of March 2025, the average stay for children in ORR custody was eighty-two days, which ORR is continually working to reduce.⁷⁵

The placement of children in sponsor homes and ORR’s follow-up services are of particular interest in this Note. As discussed, ORR’s placement of a child with a sponsor begins as soon as ORR takes custody, with the Flores Agreement preferences used as a guideline in placement. Parents, relatives, and close family members in the United States may apply to have a child in custody released to their care.⁷⁶ If no family member comes forward, ORR works with the child to identify a potential sponsor, or with the child’s consulate or a reputable family tracing organization if the child is too young to provide potential sponsor information.⁷⁷

ORR requires each potential sponsor to be screened using safe screening methods. A non-exhaustive list of safe screening methods includes identifying the sponsor, verifying a familial relationship, coordinating with a child’s parents, legal guardians, or closest relative to contact nonrelative adult sponsors, screening for exploitation or trafficking concerns, or communicating with the child directly about his or her own sense of safety.⁷⁸

Sponsor requirements are not extensive. For the most part, a sponsor simply needs to fill out an application, undergo a background check, address any criminal history, and provide proof of their identity and address, the identity of the child whom they wish to sponsor, and any sponsor-child relationship.⁷⁹ Sponsors are assessed based on a number of factors. A non-exhaustive list includes the sponsor’s relationship with the child, their resources and motivation to care for the child, the child’s view on the release, the sponsor’s understanding of the child’s needs, and risk factors that may impact the child, such as the sponsor’s criminal background, history of substance abuse, mental health issues, or domestic violence or child welfare concerns.⁸⁰ ORR does not disqualify sponsors “based solely on their immigration status or for law enforcement purposes.”⁸¹ Importantly, while sponsors enter into agreements with the federal government to provide for the physical and mental well-being of children,⁸² there appears to be no enforcement mechanism at ORR’s disposal to ensure that sponsors live up to their agreements.

Once a child is transferred to a sponsor’s custody, “ORR’s custodial relationship with the child terminates,” and care providers are required only to keep a child’s case file open for thirty days to conduct a “Safety and Well-Being Follow Up Call.”⁸³ The purpose of the safety call is to determine whether the child is safe, still in the sponsor’s care, enrolled in or attending school, and aware of upcoming immigration court dates.⁸⁴ If the care provider cannot get in touch with the child or sponsor, the provider is required only to document that fact in the child’s file,⁸⁵ a somewhat inadequate requirement given that the government has tasked itself with ensuring the well-being of unaccompanied children.⁸⁶ While ORR provides post-release services to some children with certain needs, most children and sponsors are given access only to a national hotline to be called when needed. With hotline reports of labor trafficking and exploitation of unaccompanied children jumping up in 2023,⁸⁷ it is alarming that ORR was able to contact only 81% of sponsor households between 2021 and 2022.⁸⁸ But even more alarming is that ORR has no legal responsibility to track children once they leave its custody⁸⁹ or to remove children from unfit sponsors in the event a child is exploited.⁹⁰

III. Labor Law’s Role in protecting Unaccompanied Children

While the federal government grappled with an influx of unaccompanied minors during the Biden presidency, the United States saw a 69% increase nationwide in the number of documented cases involving children employed illegally from 2018 through 2022, notably in dangerous workplaces such as meatpacking plants, construction sites, and food-processing factories.⁹¹ This increase corresponded with several news reports in 2023 detailing migrant children working in dangerous workplaces in violation of child labor laws,⁹² along with reports documenting the possible trafficking of migrant children into forced labor.⁹³ While this Note has explored the leaky system of sponsor placement for unaccompanied minors, an exploration of the laws governing child labor protections also needs to be conducted before the holes in the system can be addressed.

A. The Fair Labor Standards Act of 1938 and Related Child Labor Policies

The federal law governing the employment of child labor is the Fair Labor Standards Act of 1938 (“FLSA”).⁹⁴ The FLSA imposes occupational and hourly restrictions for children of different ages and provides penalties for employers who violate these restrictions. According to § 212(c) of the FLSA, employers⁹⁵ cannot employ any “oppressive child labor” in commerce, the “production of goods for commerce,” or any “enterprise engaged in commerce or the production of goods for commerce.”⁹⁶ Oppressive child labor means that an employer employs a child under the age of sixteen in any industry except for those exempted by the Secretary of Labor⁹⁷ or that a child between sixteen and eighteen is employed in any occupation declared as particularly hazardous for the child or detrimental to the child’s health.⁹⁸

There are several subparts in the Code of Federal Regulations (“CFR”) that either permit or prohibit specific jobs that children are allowed to work, with jobs not explicitly allowed by the CFR considered prohibited.⁹⁹ The CFR allows minors to work in jobs like babysitting, newspaper delivery, and retail work,¹⁰⁰ but minors are generally not allowed to work in hazardous occupations such as manufacturing, mining, processing, construction, roofing, warehousing, or transportation of persons.¹⁰¹ Working hours for children between the ages of fourteen and fifteen are restricted by the FLSA, with such children generally not allowed to work during school hours, more than three hours a day or eighteen hours a week while school is in session, or beyond 7 p.m. during the school year or 9 p.m. during the summer.¹⁰² Children sixteen and older can generally work without hourly restriction in any jobs that have not been declared hazardous or detrimental to their health. While occupational restrictions remain in place as children age, federal law removes hourly restrictions when children turn sixteen, a somewhat arbitrary line, but one that corresponds with the maximum age of compulsory school attendance in many states. The main thrust of the FLSA’s restrictions is that children should not be working in hazardous workplaces or doing jobs that are detrimental to their health, nor should work interfere with their education.

An employer who violates the FLSA is subject to civil money penalties and possibly up to six months in prison if they willfully violate a child labor provision subsequent to an earlier conviction.¹⁰³ Employers are subject to a maximum fine of $15,138 for each employee who was the subject of a child labor violation and can face fines up to $68,801 for each violation that causes the death or serious injury of employees under eighteen.¹⁰⁴ For repeated or willful violations that lead to the death or serious injury of a child employee, the fine may double.¹⁰⁵ There is no private cause of action under the FLSA for children who suffer child labor violations, a problematic omission that will be discussed in Section IV.B.2.

DOL’s Wage and Hour Division (“WHD”) is responsible for investigating and determining whether employers are in compliance with the FLSA’s child labor provisions.¹⁰⁶ In 2023, WHD concluded 955 cases involving child labor violations, finding 5,792 minors were employed in violation of the FLSA, of which 502 were employed in hazardous occupations.¹⁰⁷ During the Biden presidency, WHD stepped up enforcement significantly, levying multi-million dollars in fines that nearly doubled in amount year-over-year between 2022 and 2024.¹⁰⁸ Unfortunately, the number of cases involving migrant children is not tracked by WHD, but the number of children employed in violation of federal law increased 88% between 2019 and 2023,¹⁰⁹ corresponding with the influx of unaccompanied child arrivals.

In February 2023, DOL and ORR recognized the link between increased child migration and increased child labor exploitation and entered into an interagency agreement to combat child labor exploitation amongst unaccompanied children.¹¹⁰ Pursuant to this agreement, DOL and ORR collaborate and share information regarding child labor investigations and child placements.¹¹¹ The agencies gave an example of what this information sharing looks like: DOL shares information regarding an active child labor investigation with ORR, and ORR scrutinizes its sponsor vetting process in the related geographic location for signs of exploitation affecting unaccompanied children placed nearby.¹¹² In the agreement, WHD pledged to affirmatively initiate investigations in which child labor violations are most likely to occur, while ORR pledged to follow up with any child who calls the ORR National Call Center with a safety concern, a practice that was not previously utilized.¹¹³ Most importantly, the agreement called on Congress to increase funding for WHD and the Office of the Solicitor to investigate child labor cases and to increase civil penalties for child labor violations to be more of a deterrent for employers.¹¹⁴ WHD and the Office of the Solicitor have been chronically underfunded for decades, costing WHD 12% of its staff between 2010 and 2019 and resulting in more than a hundred attorneys leaving the Office of the Solicitor.¹¹⁵ Those losses have limited the number of child labor cases that WHD and the Office of the Solicitor can investigate and conclude. Given that the actual number of child labor violations in the United States is currently unknown and WHD’s budget shortfalls leave it unable to properly investigate, there is no telling how many children are actually being exploited in U.S. workplaces.

B. Varying State Child Labor Laws

As mentioned earlier, state law plays a role in the child labor protection scheme, with each state having its own system for policing illegal child labor. Some states simply implement FLSA’s provisions into their labor codes, but many create stronger protections for minors. For instance, California follows the FLSA structure of occupational and hourly restrictions but imposes hourly restrictions on children over sixteen.¹¹⁶ California’s labor code also expands the reach of its child labor protections to any person who owns or controls real property where a minor is employed if that person benefits from the minor’s employment and knowingly permits a child labor violation.¹¹⁷ Extending liability to those who own or control property covers situations in which no employment relationship exists between the property holder and a minor. For example, if a business entity hires an independent contractor to work on the entity’s property and the contractor uses illegal child labor, the entity could be liable despite having no control over the contractor’s employee. State laws also often require children and employers to obtain work permits that can provide proof of age and detail any restrictions in working hours or tasks a minor is qualified to do.¹¹⁸

Troublingly, at least twenty-eight states have reworked their labor codes to loosen restrictions on child labor since 2021, with some states loosening hourly and occupational restrictions to the point of conflict with the FLSA.¹¹⁹ Iowa, for example, loosened occupational restrictions to allow children to work in dangerous occupations like brick manufacturing, roofing, and excavation, which are prohibited under the FLSA.¹²⁰ Iowa’s approach of allowing children to work in direct violation of FLSA restrictions is reflective of a recent push by some states to create a point of tension between state and federal law, which puts DOL on alert moving forward.¹²¹

Due to the varying approaches states take to child labor protections, state law generally is not the best tool with which to protect unaccompanied minors. While states like California may offer stronger protections than states like Iowa, unaccompanied minors will only be protected by the laws of the states in which they reside with their sponsors. Relying on state law to cure the gaps in federal law creates a system in which unaccompanied minors will be exposed to various levels of risk depending on how much emphasis states put on protecting children in the workplace.

C. Anti-Trafficking Laws Protecting Unaccompanied Children

Labor trafficking of unaccompanied minors is the ultimate concern when it comes to labor exploitation. Although the TVPRA is written to help protect minors from being trafficked by requiring DHS to determine whether an unaccompanied minor has been a victim of a severe form of trafficking or whether a child is at risk of being a victim in the future,¹²² there are not many preventative measures once a child leaves ORR custody. The precursor to the TVPRA, the Trafficking Victims Protection Act of 2000 (“TVPA”), added criminal offenses relating to human trafficking to the United States Code, which are supposed to act as a deterrent to would-be traffickers.¹²³ Under 18 U.S.C. § 1589, defendants found to be trafficking in persons can face fines and be imprisoned for up to twenty years.¹²⁴ If a trafficking violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the trafficker can be imprisoned for life.¹²⁵ Traffickers are people who knowingly provide or obtain the labor or services of a person by means or threats of force, physical restraint, serious harm, the actual or threatened abuse of law or legal process, or by any scheme, plan, or pattern intended to cause a person to believe that if they do not perform labor or services, they or another person would suffer serious harm or physical restraint.¹²⁶ The meaning of the term “serious harm” is broad, including physical, psychological, financial, or reputational harm that is serious enough to compel a reasonable person of the same background and in the same circumstances to perform labor or services to avoid the harm.¹²⁷ Traffickers are also subject to civil penalties, including full restitution to a victim for the full amount of the victim’s losses.¹²⁸

On its face, the penalty scheme for trafficking has robust enough punishments to deter sponsors or third parties from trafficking unaccompanied minors and abusing their labor. But the actual effectiveness of those deterrents is unknown given that there are no readily available and reliable statistics about how often traffickers are prosecuted for the labor trafficking of unaccompanied minors. Unaccompanied children have a remedy under the TVPA in the event that trafficking is proven, but trafficking tends to be very hard to prosecute, and the TVPA’s deterrents are unlikely to keep migrant children from being pressured or forced into hazardous labor in the first place. As discussed, migrant children often want to work to help their families, and it is unlikely that many know what a textbook case of labor trafficking consists of or when to report it. While these protections for unaccompanied children and punishments for traffickers are important to keep in mind, a lack of information from the government prevents this Note from being able to adequately explore and critique the TVPA’s efficacy.

IV. ISSUES WITH and possible solutions for ORR’s PLACEMENT OF UNACCOMPANIED MINORS AND Federal enforcement of Child LABOR LAWs

Migrant children working in hazardous occupations is not a new issue, but the rate at which child labor violations are increasing and the holes in the placement and supervision of unaccompanied children portend serious failings in U.S. law and the procedures that federal agencies employ. At best, the current gaps in immigration and labor law increase the risk of migrant children being exploited or harmed by working in jobs they should not be in. At worst, the gaps are large enough to allow labor trafficking to occur. Determining how to solve the issue is not a straightforward exercise. Federal agencies, shelter networks, and individuals all have a part to play, but the complex web of federal laws, regulations, and interagency agreements has been built by dealing with one symptom of the unaccompanied arrivals issue at a time. The government should take a more comprehensive approach, updating existing laws as a complete system to protect children from point A (arrival at the border) to point B (the resolution of immigration proceedings). The Biden administration rightfully responded to unaccompanied arrivals with a humanitarian approach focused on quickly getting children out of federal custody, but current law does not ensure that unaccompanied children will be adequately taken care of after their release. The TVPRA alone does not mandate ORR to do enough to protect children, nor does the FLSA provide robust enough enforcement mechanisms to properly deter irresponsible employers or third parties from exploiting children who are motivated to work for a variety of reasons. State law also cannot be relied on to adequately protect unaccompanied children due to the various different enforcement schemes at hand across the nation.

This Part will identify issues with ORR’s custody, placement, and post-release supervision of unaccompanied minors and DOL’s inability to properly deter illegal child labor. It will also discuss possible solutions that can be implemented in a way that balances humanitarian principles with employer realities and government capabilities, presenting a series of adjustments in U.S immigration and labor law that could combine to minimize the risk that unaccompanied children face labor exploitation. This Part assumes that the majority of employers are responsible and seek to fully comply with the law. It uses the term “irresponsible employers” to mean those that would willingly resort to illegal child labor in violation of state or federal law.

A.Issues with ORR’s Custody, Placement, and Post-Release Supervision of Unaccompanied Minors

1.Proper Vetting of Sponsors Versus Speed of Release

As discussed in Part III, there are many drawbacks to holding children in ORR custody. Children may suffer sexual harassment and abuse in government facilities,¹²⁹ and a child’s lack of contact with their family can lead to toxic stress that permanently alters brain chemistry.¹³⁰ Children being traumatized in federal custody is real. Studies show that detention is “deleterious to the mental health of immigrants” and that detained children experience significant psychological distress, especially when separated from their caretakers.¹³¹ While the risk of harm to migrant children in ORR’s custody has been clearly documented, releasing a child to a sponsor too quickly can put the child at risk of not being properly cared for, possibly leading to the child’s exploitation or trafficking, examples of which reporters have repeatedly identified.¹³² Thus, the government must strike a risk-minimizing balance between quickly placing unaccompanied children with sponsors to avoid prolonged detention and properly vetting sponsor households to ensure a safe environment for paroled children.

During the first Trump presidency, the average length of time that unaccompanied children remained in ORR custody ballooned to 102 days, partially as a result of an information-sharing agreement between ORR, Immigration and Customs Enforcement (“ICE”), and CBP that was geared toward increasing the due diligence required for sponsors.¹³³ The agreement called for ORR to share the citizenship and immigration status, criminal and immigration history, and biographic and biometric information about potential sponsors and their household members with ICE.¹³⁴ In turn, ICE would provide summaries of a sponsor’s immigration and criminal histories for ORR to make a more thorough decision on a sponsor’s suitability.¹³⁵ While the Trump administration sold the agreement as a more stringent vetting of sponsors to ensure the well-being and protection of unaccompanied minors, the policy was ultimately used by ICE to arrest and deport undocumented migrants who applied to sponsor children, causing a chilling effect on the number of sponsors willing to apply to take children in.¹³⁶ With fewer sponsors, increases in minors’ detention time naturally resulted. A massive backlog of unaccompanied minors in prolonged detention led the Biden administration to terminate the Trump-era information sharing agreement between ORR and ICE and temporarily waive background check requirements for sponsor applicant household members,¹³⁷ adopting a controversial policy of moving children more rapidly through the shelter system.¹³⁸ These policy changes created a major issue for the UAC Bureau: the risk of harm to children in custody was traded for the risk that children would end up in an inappropriate sponsor home. Moving back into a Trump presidency begs the question of whether President Biden’s approach should persist.

The second Trump administration should not return to a policy of sharing sponsor information between ORR and ICE, as it greatly prolonged child stays in detention while being used as a tool to deport family members who sought to reunite with children in federal custody. The Biden administration’s decision to terminate the information sharing agreement to speed up sponsor placements was the correct call, as it is not in the best interests of unaccompanied children or the government to discourage sponsorship by involving ICE in the vetting process. A child’s best interest is to be released quickly and safely, ideally into a family member’s care. But many family members of unaccompanied children may themselves be undocumented or live with others who are. Allowing ICE to scrutinize members of a sponsor’s household will undoubtedly disincentivize family members from applying as sponsors and lead to longer detention for children, as seen during the first Trump presidency. It is also unlikely that the immigration status of a member of a sponsor’s household, on its own, increases any risk to a child placed in the sponsor’s care. Likewise, the government’s best interest is also to quickly and safely place a child in a sponsor’s care, as it is not feasible for ORR to house, educate, and care for tens of thousands of children for any prolonged period of time. In its current state, the U.S. immigration system is not equipped to care for unaccompanied minors for more than a few weeks, if at all. Placing children with sponsors quickly, even if a member of a sponsor’s household may not have legal status in the United States, is better than leaving children languishing in federal detention and meets the needs of both unaccompanied minors and the federal government.

While the second Trump administration should not return to its former policies, the Biden administration’s policy of speeding up sponsor placements by waiving background checks for members of a sponsor applicant’s household should also not be used in the future. When ORR’s ability to properly care for children in custody is maxed out, sponsor placement is the only option, absent an uptick in resources meted out by Congress. That is the situation the Biden administration found itself in after taking office. But while speeding up placements is the only adequate option during times of agency overwhelm, the executive branch should not be able to resort to outright waivers of background checks for members of sponsor-applicants’ homes, as such measures impose unnecessary risk on the children that ORR is tasked to protect. The TVPRA already spells out minimum considerations ORR must make regarding sponsors,¹³⁹ and agency officials should remain beholden to minimal legal standards for the safety of unaccompanied minors.

Congress can likely address the shortcomings of both the Trump and Biden administrations by amending the TVPRA to ensure that anti-immigration administrations cannot impose unnecessary burdens on the UAC Bureau that slow child placement and that immigration-neutral or pro-immigration administrations cannot waive necessary background checks. Rather than setting a minimum standard, the TVPRA could be amended to define what a proper background check consists of, while making that background check non-waivable. While the TVPRA has minimum background check standards, Congress should take some discretion out of the hands of the Secretary of HHS by laying down a comprehensive and non-waivable background check via statute. Congress is in the best position to listen to stakeholders and balance the needs of children and HHS in outlining a background check. It can define the full scope of what a proper background check should consist of, prohibiting unnecessary steps like the extra ICE check, while ensuring that background checks cannot be legally waived by the HHS Secretary. Moreover, Congress should also statutorily guarantee that it will adjust ORR’s funding in times of system overwhelm. Such measures would add a layer of accountability and oversight over HHS in order to protect children from the harm of being released to unsuitable sponsors and guarantee that ORR has the resources it needs to properly ramp up operations during times of influx.

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

The true impact of the Biden administration’s changes to sponsor vetting and child placement is currently unknown due to a lack of information about children placed into a sponsor’s care after a waived background check, which is a large part of the issue. According to former HHS Secretary Xavier Becerra, ORR has no legal requirement to keep track of children once it releases them from its custody, nor do paroled children or their sponsors have an obligation to follow up with ORR.¹⁴⁰ This is a major gap in the TVPRA and related regulations that raises the risk of labor exploitation. ORR increasingly lost touch with the children it paroled into sponsor care during the Biden presidency, as evidenced by the fact that it could not reach roughly 85,000 children for follow-up calls.¹⁴¹ Without a legal mandate to keep track of unaccompanied children upon release, ORR cannot be expected to prioritize critical measures that could help ensure the well-being of paroled children. ORR is the first line of defense in ensuring that children are in proper homes in which education is the priority, and the agency should be required to procure and maintain post-release data about whether children are attending school full-time or working, the nature of any such employment, and whether sponsors are adequately caring for them. Such data is critical in evaluating whether children are at a greater risk of harm by remaining in government custody or by being released as quickly as possible. At a minimum, Congress should amend the TVPRA to require ORR to keep track of children formerly in its custody and record statistics regarding school attendance and work performed, along with qualitative data about the child’s experience with their sponsor.

ORR does voluntarily contact children thirty days after their release and offers post-release services to a decent number of children,¹⁴² which shows that some infrastructure exists that could be scaled up. But ORR is not currently equipped to keep track of the tens of thousands of sponsored children currently in the United States and would certainly need further funding from Congress to do so. It is important to note that children would not need to be monitored indefinitely. The length of time that monitoring would be required is limited temporally by two factors: first, all unaccompanied minors are placed into removal proceedings immediately upon being transferred into ORR’s custody,¹⁴³ meaning each child’s monitoring has a guaranteed end date based on a determination of their immigration status; and second, children age out of the unaccompanied child program when they turn eighteen.¹⁴⁴ While ORR would need to significantly scale up its post-release capabilities to comprehensively track where every unaccompanied child goes and what happens to them post-release, this is likely a matter of political will that could have the backing of both conservative politicians concerned about undocumented immigrants in the country and liberal politicians concerned about the wellbeing of migrant children.

Monitoring whether unaccompanied children are attending school regularly would greatly improve the ability of ORR and DOL to identify children who may be at risk of exploitation. Much of the victimization discussed in this Note centers on unaccompanied minors who are working in hazardous conditions in violation of federal child labor laws. Children released to sponsors are usually required to attend school under state law,¹⁴⁵ but news reports make clear that many are not attending school regularly, if at all, and instead working long shifts in dangerous workplaces.¹⁴⁶ These children should be attending school full-time and focusing on their immigration matters. If a child’s attendance record in school is sparse, it may be evidence that the child is being overworked outside of school, which could point to exploitation from a third party. While ORR alone does not have the capacity or infrastructure to monitor every child it places into a sponsor home, it could enter into an information-sharing agreement with the Department of Education (“DOE”) to monitor school attendance for paroled children attending public schools. Local and state education boards regularly track student attendance in schools, and public schools that receive federal funding have the ability to share attendance statistics with DOE under the Federal Educational Rights and Privacy Act (“FERPA”).¹⁴⁷ Although FERPA protects the privacy of students’ education records (including history of attendance) and prevents them from being shared with any individual, agency, or organization without the written consent of parents,¹⁴⁸ the law only specifically affords privacy protections to parents and eligible students.¹⁴⁹ FERPA arguably does not apply to unaccompanied minors who are not in the care of their parents and, as such, would not be an impediment to DOE sharing student records with ORR. This kind of interagency agreement would provide ORR with vital information that could help tip the government off to potential exploitation of children who are not regularly attending class.

Through congressional mandate or interagency cooperation, keeping track of paroled children is the surest way to monitor their wellbeing and prevent them from working in dangerous situations. If the TVPRA were amended to mandate that ORR keep track of paroled children, an information-sharing agreement with DOE would likely be an efficient and cost-effective way to fulfill part of that mandate. Along with ORR’s information-sharing agreement with DOL, an agreement with DOE would enable federal agencies to pool their resources and work together to protect unaccompanied minors, without requiring a massive increase in funding from Congress. In today’s polarized political climate, a targeted amendment to the TVPRA and an interagency agreement are probably the most realistic and practical solutions.

3.Implementing Reporting Requirements for Sponsors

Even if ORR was mandated to monitor every unaccompanied child post-release, its efforts would not be effective without a change in current law to require sponsors and paroled children to report in to the agency. As previously noted, ORR was able to contact only about 81% of sponsor households with thirty-day wellness checks between 2022 and 2023.¹⁵⁰ Mandating ORR to contact children will not ensure contact will be made. Sponsors and children may simply be unreachable. While each sponsor signs an agreement with the federal government promising to provide for a child’s well-being, there is seemingly no requirement that a sponsor prove that they are doing so. For instance, if a sponsor coerces a child to work in order to pay for rent or meals that the sponsor is supposed to provide, ORR will not know unless the child reports the abuse to ORR’s National Call Center. The current system puts the onus squarely on children to voluntarily report their own abuse, which leads to guaranteed underreporting issues.¹⁵¹ A more humane system would require sponsors to check in with ORR at regular intervals to certify that children are being cared for, with an emphasis placed on hearing from the child directly. While such reporting requirements would still be vulnerable to sponsor misrepresentation or noncompliance, an affirmative obligation would exist for sponsors that could deter unsuitable sponsors from applying in the first place.

There may be some question as to whether tracking children post-release is actually necessary, as most children who arrive unaccompanied at the border are fifteen or older.¹⁵² Indeed, the idea of fifteen- and sixteen-year-olds entering the workforce is common in the United States,¹⁵³ but it is important to remember we are talking about a specific subset of particularly vulnerable children. It should not be controversial to say that a child’s focus should be on completing a primary education rather than working in a factory or slaughterhouse. As it stands, children who fail to attend school regularly, regardless of the reason, tend to suffer worse outcomes than those who do.¹⁵⁴ If the federal government is intent on meeting arrivals of unaccompanied children with a humanitarian focus, as it was under President Biden, it must create an immigration system that focuses on providing unaccompanied children with a proper education while keeping them from working in illegal occupations. Knowing where children are and what their condition is post-release is an important step toward meeting those goals and lowering the risk of harm.

4.Enforcement Mechanism Needed

The last major problem with ORR that this Note will address is ORR’s inability to act when sponsors fail to properly care for children. ORR’s role is limited to placing children safely into sponsor homes. It is not a federal law enforcement agency, and it is not statutorily tasked with scrutinizing whether sponsorships are successful. But ORR does require sponsors to agree to provide care for paroled children,¹⁵⁵ and it has an interest in knowing that sponsors comply with those agreements. If a sponsor’s care is lacking, ORR does not have many options to enforce its agreement and ensure that children are getting the help they need. According to former ORR Director Robin Dunn Marcos, ORR’s only recourse in such cases is to refer the matter “to local law enforcement, child protective service[s], and other federal entities as appropriate.”¹⁵⁶ ORR itself has no power to remove a child from a sponsor’s care. While referring allegations of sponsor abuse to state and local agencies seems like a reasonable process, the reliance on third-party entities to make a determination adds complexity to the UAC Bureau system and shifts the burden of protection away from the federal government. Unaccompanied children have distinct needs due to their immigration status, such that being placed into a foster home by a state or local agency may complicate their ability to seek familial help or legal representation during their immigration processes. Rather than relying on state agencies using differing processes to address sponsor abuse or abandonment, the federal government should be responsible for managing each unaccompanied minor to ensure continuity of care throughout the immigration process.

If an ORR sponsor credibly fails to honor their agreement with the federal government, there should be tangible actions that ORR can take, such as reclaiming custody of any child in the sponsor’s care and revoking that sponsor’s right to sponsor other children in the future. Rather than letting paroled children bounce between local, state, and federal agencies in the event of a failed sponsorship, Congress should amend the TVPRA to allow ORR to reassign children to suitable sponsors. Failed sponsorships include not only cases of abuse and exploitation, but also cases of neglect and abandonment in which sponsors help children get out of federal custody but then leave them to fend for themselves after release, which are not always foreseeable situations when vetting sponsors. By allowing or requiring ORR to retake custody of unaccompanied minors, Congress would incentivize ORR to follow sponsor-vetting procedures and find the right match at the outset, while allowing for continuity of contact between paroled children and the agency in the event a child is exploited by their sponsor. Increased continuity would lessen the confusion that unaccompanied children experience throughout the UAC Bureau and task ORR with the responsibility to make the program a success.

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

In 2023, then former ORR Director Dunn Marcos told the House Oversight and Accountability Subcommittee on National Security, the Border, and Foreign Affairs that combatting labor exploitation among unaccompanied children requires “a whole-of-government approach,”¹⁵⁷ intimating that ORR alone cannot solve the issue. Despite facing heavy bipartisan criticism for ORR’s performance, Director Dunn Marcos was correct. The federal government must act in tandem across agencies and government branches to properly safeguard unaccompanied minors. Collaborating with DOE would be a start in terms of monitoring children’s well-being post-release, but ORR cannot also monitor children in the workplace. That task belongs to DOL. While an existing agreement between the agencies exists to tackle possible labor exploitation of unaccompanied minors, congressional action and statutory changes are needed to further reduce the risk of exploitation for unaccompanied minors. This Section will address DOL’s chronic underfunding and FLSA’s insufficient statutory penalties as two issues that can be remedied to reduce the risk of unaccompanied minor exploitation. Further, it will discuss the need for a private cause of action for victims of willful child labor violations to provide children with a remedy for the harm they suffer.

1.DOL’s Chronic Underfunding Increases the Risk that Unaccompanied Minors Go Unnoticed by Federal Investigators

2023 and 2024 marked DOL’s most aggressive enforcement years in the agency’s history in terms of punishing employers who illegally employed child labor.¹⁵⁸ In response to a reported 88% jump in illegal child labor between 2019 and 2023,¹⁵⁹ DOL made clear that the rising rate “is a direct result of [the agency’s] increased emphasis on identifying child labor cases and bringing enforcement actions when [it] find[s] companies violating the law.”¹⁶⁰ The agency’s focus on expanding enforcement actions is welcome news for those concerned about unaccompanied children facing labor exploitation or trafficking, but Congress has left DOL chronically underfunded for years, undercutting WHD’s ability to properly investigate and enforce child labor laws.

In reviewing DOL’s 2024 budget, the number of investigators that WHD employed is near the lowest it has been in the last fifty years, down significantly from the peak level achieved in the 2013 fiscal year.¹⁶¹ According to the agency, reduced staffing levels limit WHD’s ability to “develop impactful cases,” and “[c]ontinuing to operate at these levels poses significant risks to the [agency’s] mission.”¹⁶² As of April 2023, WHD employed a mere 794 investigators¹⁶³ to police 11 million workplaces and enforce laws protecting roughly 165 million workers.¹⁶⁴ The number of investigators that WHD can afford to hire has eroded year-after-year since the agency employed over a thousand investigators per year from 2010 to 2013.¹⁶⁵ WHD’s 2023 operating budget authority of roughly $310 million was a slight increase over 2022’s $299 million,¹⁶⁶ but in terms of inflation-adjusted dollars, those funding figures are roughly even with the amount of money appropriated by Congress back in 2006,¹⁶⁷ demonstrating that Congress has been unwilling to increase its investment in the enforcement of child labor protections for decades. Without adequate funding, WHD cannot ensure it has an adequate number of investigators to look into allegations of illegal child labor.¹⁶⁸

The sheer number of workplaces that WHD is responsible for illustrates the problem of underfunding. If each of WHD’s 794 investigators began individually reviewing one workplace per day for signs of child labor violations, it would take roughly thirty-eight years to complete a single round of investigations of all eleven million workplaces in the United States.¹⁶⁹ Obviously, not every employer needs to be investigated for child labor violations, as many (if not most) do everything in their power to follow the law, but the illustration serves to show how thinly stretched WHD is. Under all of the statutes that WHD enforces, it concluded 20,215 compliance actions in 2023, its lowest total in ten years.¹⁷⁰ Even though its number of closed cases involving child labor violations reached a ten-year high in 2023,¹⁷¹ WHD failed to conclude the same number of compliance actions as the previous year for the sixth straight year.¹⁷² These figures should not be read to assume that federal labor law violations are on the decline. As evidenced by the sharp increase in child labor law violations nationwide, the rate of violations tends to increase in areas in which WHD focuses its attention in the first place.

The only solution to the issue of inadequate enforcement caused by understaffing is proper funding. Both chambers of Congress have made a point to try to address child labor violations by presenting bills with expanded penalties for violators,¹⁷³ but increasing penalties alone will not lessen WHD’s burden as it attempts to enforce child labor laws. Harsher penalties may deter some irresponsible employers and lead them back to a place of compliance, but the agency will likely still be stymied by the same erosion of resources and investigators as has been the case the past ten years. If Congress is serious about addressing the harms that unaccompanied children (and U.S. children) face in abusive workplaces, it needs to fully fund DOL, as the Biden administration requested in its 2024 budget. With full agency funding, WHD would have the capacity to increase child labor investigations, thereby reducing the risk that unaccompanied minors working in some of the United States’ most dangerous workplaces go unnoticed. Without adequate funding, WHD will be continually forced to ration its enforcement capabilities with an ever-shrinking roster of investigators, thus ensuring that labor exploitation of unaccompanied minors goes unnoticed.

2. Current FLSA Penalties Are Inadequate to Deter Bad Actors from Committing Child Labor Law Violations

Even if Congress adequately funded DOL, there would still be an issue of inadequate penalties for child labor law violators. As mentioned in Section III.A, FLSA violators are currently subject to a maximum fine of $15,138 for each child labor violation and can be fined up to $68,801 for each violation that causes the death or serious injury of any employee under eighteen.¹⁷⁴ By assessing fines per violation,¹⁷⁵ WHD is also able to stack penalties against violators depending on the severity of the conduct. But while these fines may be costly, the FLSA penalization scheme often feels woefully insufficient based on the harm suffered.

For instance, a contractor that hired a fifteen-year-old boy to do roofing work on a corporate building was fined $117,175 in civil penalties for FLSA child labor violations, but the harm the boy suffered included falling fifty feet to his death on his first day of work.¹⁷⁶ Proportionally, the civil penalty feels inadequate given that the boy lost his life in a job he should have never been hired for. To make matters worse, the fines collected in such a tragedy only go toward “reimbursement of [WHD’s] costs of determining the violations and assessing and collecting such penalties.”¹⁷⁷ No compensation exists under the FLSA for the victim or their family. Depending on the size of the irresponsible employer cited, a six-figure fine may not be enough of a deterrent for risky behavior.

In lieu of fines, WHD may hold an irresponsible employer accountable by activating the “hot goods” provision of the FLSA, allowing WHD to prevent the sale of any goods made using oppressive child labor.¹⁷⁸ This provision was used in 2023 against a Wisconsin sawmill operator following the death of a sixteen-year-old who was caught in a wood-stacking machine, resulting in the company’s goods being withheld from shipment.¹⁷⁹ Ultimately, in exchange for WHD releasing its hold on the goods, the sawmill operator agreed to $190,696 in civil penalties for numerous child labor violations and to place labels and signage to prevent children under eighteen from using dangerous equipment at the sawmill.¹⁸⁰ The company then fired all employees under the age of eighteen.¹⁸¹ While costly and inconvenient for the sawmill operator, the threat of such fines did not prevent the tragic outcome in the first place.

Given that child labor violations, even those involving the death of children, generally result only in civil monetary penalties that are limited by statute, Congress should revisit the effectiveness of the FLSA’s penalization scheme. The current scheme does not make up for the serious harm children sometimes suffer, nor are the penalties adequate to deter irresponsible actors from using and abusing the labor of unaccompanied children. While many responsible employers will be sure to hire competent counsel to guide their compliance efforts, irresponsible employers may not and might expose children to risk based on a cost-benefit analysis.

To illustrate an extreme case, a slaughterhouse sanitation company was fined more than $1.5 million after WHD investigators found over one hundred children employed by the company cleaning slaughterhouses across the country.¹⁸² Some of these children were as young as thirteen and suffered chemical burns, and DHS investigated possible human trafficking after finding that some of the children were unaccompanied minors.¹⁸³ In addition to chemical burns and working overnight shifts after attending school all day,¹⁸⁴ the children also lost their jobs in response to government fines and saw no compensation from the penalties levied on their employer, aside from the end of their exploitation. While the sanitation company lost some contracts with major corporations¹⁸⁵ and paid a hefty WHD fine, it otherwise showed few, if any, signs of a long-term setback in operations and still employs about 16,500 workers nationwide.¹⁸⁶ The children who were the subject of the violations arguably fared much worse, specifically the unaccompanied minors, as such children are often motivated to work to send money home to their families¹⁸⁷ and probably needed their jobs, however exploitative. Moreover, if the sanitation company properly terminated the unaccompanied minors in its employ, the unaccompanied minors were likely left with no recourse whatsoever, as the FLSA provides no private cause of action for victims of child labor violations.

While this Note assumes that most employers want to do the right thing and do not wish to exploit children, irresponsible or negligent actors do exist. So, what statutory fixes can be made to increase deterrence? As noted earlier, several bipartisan bills have been proposed in Congress in recent years to strengthen the penalties for child labor violations.¹⁸⁸ An interesting bill advanced by Senators Brian Schatz and Todd Young, the Stop Child Labor Act,¹⁸⁹ proposed to increase the maximum FLSA fines to $132,270 for common child labor violations and $601,150 for violations that result in serious injury or death to a minor.¹⁹⁰ It also proposed a private cause of action for exploited children to seek up to $250,000 in punitive and compensatory damages in federal court.¹⁹¹ By proposing increased fines and a private cause of action, the senators’ bill addressed two issues that make current labor law so ineffective as a deterrent for irresponsible employers, thus serving as an intriguing model for how labor law could evolve to safeguard unaccompanied minors.

First, FLSA fines are currently far too low to deter many employers. Even the sizeable $1.5 million fine mentioned above can be a drop in the bucket for many companies. The sanitation company that absorbed the $1.5 million fine was bought for close to $1 billion in 2014¹⁹² and sold for an undisclosed amount in 2018 to a private equity firm with a January 2025 market cap of $210 billion.¹⁹³ While most employers are responsible and seek to avoid child labor violations, irresponsible actors may simply conduct a cost-benefit analysis and turn a blind eye to potential child labor violations in their workplaces if the payoff is high enough. There is also an issue of companies failing to recognize an appreciable risk of harm to children when utilizing staffing agencies or contractors who place children in company workplaces.¹⁹⁴ To have any kind of a deterrent effect, FLSA fines need to be high enough to convince irresponsible employers to seek full compliance with the law. Otherwise, if the cost is negligible, irresponsible actors will simply build potential penalties into their business models and accept the risk of getting caught. The Stop Child Labor Act proposed increasing the minimum and maximum fines nearly tenfold, with penalties increasing annually in lockstep with the consumer price index for all urban consumers.¹⁹⁵ It is hard to say whether these increases would be enough to properly incentivize every irresponsible actor to comply with the law or too punitive for responsible employers who mistakenly violate the law, but increases of any kind are a start and are recommended by this Note.¹⁹⁶

Second, granting a private cause of action to children who suffer exploitation may be more effective than assessing WHD penalties in remedying the harm caused, provided that responsible employers are protected from unnecessary and unfair litigation. The Stop Child Labor Act’s inclusion of liability in the form of punitive and compensatory damages for child victims is a model that could help increase deterrence and provide an avenue for unaccompanied minors to seek justice, an avenue which does not currently exist. As seen earlier, employers who are fined by WHD for child labor violations sometimes terminate all minors in their employ, even children who are not the subjects of the violations. Due to the particular needs of unaccompanied minors, they may be incentivized to work, even if the work is exploitative. Thus, losing a job, even an exploitative one, can harm these children more than it helps at times. In such a situation, government action essentially victimizes unaccompanied minors further, exposing them to a vicious cycle in which they are exploited in a job that they need, fired when DOL cracks down, and then forced to find another available job, even if it too is dangerous. Providing such children with a cause of action would give them a remedy to their individualized harm. Moreover, litigation can enable facts to come to light that demonstrate the true harm that unaccompanied minors at times suffer.

The federal government will soon be able to look to Colorado to see whether a private cause of action is viable. Colorado added a private cause of action to its labor code for aggrieved children who suffer child labor violations, which became effective on January 1, 2025.¹⁹⁷ Depending on the violation suffered, a child can recover anywhere from $500 to $65,000.¹⁹⁸ This scheme provides an outlet for exploited children to seek redress where they otherwise may not have been able to. It is worth noting, however, that such a system could be abused by children who lie about their ages, thus burdening responsible employers. Unaccompanied minors seeking work are not immune to misrepresenting their ages to employers. Importantly, Colorado’s additions to its labor code protect responsible employers by allowing actions against an employer to be waived if a minor intentionally misleads the employer about their age.¹⁹⁹ Further employer protections may be needed to avoid incentivizing frivolous litigation, such as limiting an employer’s liability in situations in which the employer was merely negligent. A delicate balance must be struck so that unaccompanied minors can seek justice and compensation without employers bearing an undue burden by having to litigate unnecessarily.

Increased fines and the availability of a private cause of action for exploited minors, with some guardrails to protect responsible employers, would add an appropriate level of deterrence to existing law and provide an avenue for unaccompanied children who are wronged to actually be compensated for their harm. Without strong deterrents, the rate of child labor violations nationwide may continue to increase, leaving unaccompanied minors at an increased risk of exploitation. At a minimum, Congress must properly fund DOL so that WHD can continue its important mission of uncovering exploitation of unaccompanied minors in the workplace.

C. Summary of Solutions

To reduce the risk of unaccompanied minors being exploited in U.S. workplaces, a number of measures need to be taken. As discussed in Section IV.A, Congress should first ensure that ORR never waives background checks for sponsors. Next, Congress should amend the TVPRA to require ORR to monitor children formerly in its custody and record school attendance and employment statistics for unaccompanied children, as well as qualitative data about each child’s experience with their sponsor. This monitoring can be accomplished by ORR increasing post-release services for all children and creating an information-sharing agreement with DOE to track school attendance among unaccompanied minors. Moreover, regulations should be implemented to require sponsors and unaccompanied children placed into their care to report to ORR periodically. To meet the mission of monitoring hundreds of thousands of paroled children, Congress will have to direct proper funding and resources to ORR, as well grant ORR the statutory authority to reclaim custody and find new sponsor homes for children whose sponsors fail to care for them.

Addressing ORR’s issues alone is not sufficient. A whole-of-government approach is required, whereby Congress must properly fund DOL so it can increase enforcement actions against irresponsible parties engaging in illegal child labor. Increased enforcement can be accomplished only by properly staffing WHD, which requires DOL to be fully funded. Additionally, Congress should act to increase the penalties that DOL can assess for child labor violations and create a cause of action for victims of illegal child labor, provided that any cause of action has proper protections built in for responsible employers. If implemented as a comprehensive set of reforms, these solutions will minimize the risk of unaccompanied children being victimized and exploited for their labor.

CONCLUSION

This Note sought to identify the gaps in federal immigration law and labor law that increase the risk of labor exploitation for unaccompanied minors who are placed in sponsor homes in the United States. While immigration law and labor law are usually looked at separately, this Note set out to recommend a comprehensive set of measures that could be taken in both areas of law to meet the common goal of mitigating the risk of harm that unaccompanied minors face due to their unique circumstances.

In making these recommendations, this Note examined a series of overlapping statutes and policies that are either structurally unsound or undermined by congressional inaction and underfunding. The TVPRA’s text and ORR’s approach to child placement are too relaxed and put unaccompanied children at an increased risk of exploitation. The TVPRA mandates government action only while unaccompanied minors are in ORR custody and relieves the government of any responsibility once children are placed into sponsor homes. Moreover, ORR does not have the resources or infrastructure available to effectively monitor every child that it releases from its custody. Similarly, while the basic structure of the FLSA is sound, the statute is undermined by relatively weak penalties and provides no avenue for child victims to seek compensation for the harm they suffer. Moreover, although Congress has signaled that it wants child labor protections to be enforced, it has underfunded the agency responsible for upholding child labor laws for years, leaving DOL understaffed and unable to meet its critical mission of holding irresponsible employers accountable and ensuring a safe workplace for children and adults alike.

Protecting unaccompanied children from labor exploitation cannot be accomplished by addressing only one set of laws or a single federal agency. A whole-of-government approach is needed whereby the legislative branch addresses gaps in current law and the executive branch uses all of the levers at its disposal to combat the issue. Legal adjustments in both immigration law and labor law and congressional funding are needed to empower ORR and DOL to fulfill their missions, and interagency agreements should be entered into and maintained in order to safeguard unaccompanied minors through their entire journey with the UAC Bureau. In the immigration arena, Congress should amend the TVPRA to require ORR to monitor children who are released from government custody until their immigration matters are settled or they age out of the UAC Bureau, and ORR must be given the authority to reclaim custody and find new sponsor homes for children who are being abused or exploited by their sponsors. ORR should also find creative ways to monitor children in lieu of increased federal funding, such as entering into an information-sharing agreement with DOE. Finally, sponsors and unaccompanied children should be required to check in with ORR as a means to demonstrate that the child is being properly cared for.

Once children have been released from ORR custody, DOL is uniquely positioned to safeguard them from employer exploitation. But DOL needs to be properly funded by Congress to be able to adequately monitor and respond to reports of illegal child labor. Understaffing has hindered DOL’s ability to investigate illegal child labor, which puts unaccompanied minors at a greater risk of harm in dangerous workplaces. While an information-sharing agreement with ORR to identify potential exploitation or trafficking amongst unaccompanied minors is a good start, DOL needs help from Congress regarding enforcement. Congress should first update the FLSA to ensure that financial penalties are high enough to act as a proper deterrent against illegal child labor. Congress should also consider providing victims of illegal child labor with a private cause of action to seek individual justice, so long as proper protections exist to prevent frivolous litigation against responsible employers.

Unaccompanied children are a particularly vulnerable group, made even more so by the shifting political winds in the United States. With the current gaps in federal law and new leadership in the executive branch every four years, unaccompanied minors are falling through the cracks and ending up in prohibited workplaces. No single agency or statutory scheme is capable of protecting each child through every step of their immigration journey. But through a collaborative and whole-of-government approach, the United States can address the shortcomings in federal immigration and labor law to properly mitigate the risk that unaccompanied children face exploitation. If Congress truly cares about children being exploited in the workplace, it should not hesitate to act by amending the TVPRA and FLSA and properly funding ORR and DOL. Congressional critiques of these agencies will not fix the structural problems hampering their performances; only congressional action can do that. The federal government has properly committed itself to protecting unaccompanied children, but it is long past time that it lives up to that commitment.

98 S. Cal. L. Rev. 761

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Charlie Murphy*

* Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2011, Emerson College. Thank you to Jeremy Gartland, Isabelle Yuan, Michelle Solarczyk, and the staff of the Southern California Law Review for their expert edits and wonderful feedback, and to Professor Rebecca Brown for her guidance and tutelage.

I especially want to thank Professor Henna Pithia and my International Human Rights Clinic classmates. Advocating for the rights of vulnerable and politically unpopular groups requires bravery and sacrifice, and the passion that Professor Pithia and my IHRC family brought to their work inspired me in writing this Note and left me in awe.

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

April 2020February 2024Christine Cheung

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,

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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. Hawai’i.[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 Trump—which together constituted the Muslim ban—and the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawai’i Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawai’i 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. Hawai’i 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 country—even 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 majority–Muslim 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 Hawai’i 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 majority–Muslim 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. Hawai’i

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 first–mover’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., Here’s the Full List of Donald Trump’s 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. Hawai’i, 138 S. Ct. 2392, 23992402 (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 Jackson’s 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 Congress’s 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 Bush’s 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 President’s 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 individual’s 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. Hawai’i, 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 find “that 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 President’s 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 President’s 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 President’s delegated authority under § 1182(f) because Congress could have written § 1152(a)(1)(A) in such a way that it would constrain the President’s 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 President’s 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, 33–34 (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. Hawai’i, 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 Presidency—Political 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 Demagogue—or 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 1084–85.

[83]. Bray, supra note 22, at 460.

[84]. Id. at 464–65.

[85]. Suzette M. Malveaux, Response, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56, 58–59 (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

November 2019January 2020Southern California Law Review Admin

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

November 2018January 2019Southern California Law Review Admin

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 non–private) 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.

TABLE OF CONTENTS

Introduction

I.Background

A.Political Context

B.Legal and Policy Framework

C.Research on Detention

B.Analytical Approach

III.Key Empirical Findings

A.Detainee Characteristics

B.Detention Facility Characteristics

C.Detention Outcomes

1.Detention Length

2.Inter-Facility Transfers

A. Detention Data Preparation

B. Gaps in Custody Periods and Detention Stints

C. Transfers

D. Coding Facilities as Privately Operated

E. Distance Measures

F. Geocoding Facilities

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 post–1996 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 were “largely 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 for–profit 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, non–governmental 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 (the“failure 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 detainee’s “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 for–profit 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 non–privately 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 non–privately 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 (non–privately operated) facilities. We then divide that total by the total number of detainees who ever spent time in privately operated (non–privately 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 non–privately 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 non–privately 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 non–privately 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 substantial—about 820 miles. The median for intercircuit transfers is a little less than the mean—about 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 (non–privately 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 non–privately 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 non–privately 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, non–privately 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 non–privately 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 non–privately 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 non–profit and for–profit 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 non–profit 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

July 2017February 2018Southern California Law Review Admin

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

January 2017February 2018Colleen Bazak

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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Introduction

I. The Evolution of Undocumented Immigrant Sentencing

A. Florida’s Refugee Crisis and Reentry Sentences

B. Writing and Rewriting the Reentry Guidelines

C. The First Step Act and Trump-Era Immigration Politics

II. The Discrimination Problem

A. Double Counting Criminal History

B. Doing More and Harder Time

III. The Arbitrariness Problem

A. The Criminal History Lottery

Timing the Deportation

Misinterpreting State Sentences

Supervision Complications

Slow Court Records, Fast Guilty Pleas

B. The Case of Mr. R

IV. Sentencing Constitutionalism

A. A Two-Track Model of Equal Protection at Sentencing

B. Sentencing Constitutionalism and The Crack/Powder Disparity

Conclusion

Appendix

99 S. Cal. L. Rev. 291

Introduction

I.A Historic Influx of Unaccompanied Children

II.The Legal Foundation Underpinning ORR’s Apprehension, Custody, and placement of Unaccompanied Children

A.The Flores Settlement Agreement of 1997

B.The Homeland Security Act of 2002

C.The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

D.ORR’s Role in Child Custody and Placement

III. Labor Law’s Role in protecting Unaccompanied Children

A. The Fair Labor Standards Act of 1938 and Related Child Labor Policies

B. Varying State Child Labor Laws

C. Anti-Trafficking Laws Protecting Unaccompanied Children

IV. ISSUES WITH and possible solutions for ORR’s PLACEMENT OF UNACCOMPANIED MINORS AND Federal enforcement of Child LABOR LAWs

A.Issues with ORR’s Custody, Placement, and Post-Release Supervision of Unaccompanied Minors

1.Proper Vetting of Sponsors Versus Speed of Release

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

3.Implementing Reporting Requirements for Sponsors

4.Enforcement Mechanism Needed

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

1.DOL’s Chronic Underfunding Increases the Risk that Unaccompanied Minors Go Unnoticed by Federal Investigators

2. Current FLSA Penalties Are Inadequate to Deter Bad Actors from Committing Child Labor Law Violations

C. Summary of Solutions

CONCLUSION

98 S. Cal. L. Rev. 761

From Volume 92, Number 1 (November 2018) DOWNLOAD PDF

From Volume 90, Number 5 (July 2017) DOWNLOAD PDF

From Volume 90, Number 2 (January 2017) DOWNLOAD PDF

From Volume 92, Number 1 (November 2018)
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From Volume 90, Number 5 (July 2017)
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From Volume 90, Number 2 (January 2017)
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