By Gilberto Rosas &Virginia Raymond

The Covid-19 emergency only deepens the crisis of inhumanity in the U.S. carceral immigration system. The only way to truly protect migrant lives is to abolish detention.

North American Congress on Latin America (NACLA) — Fall 2020 . 289-295, http://dx.doi.org/10.1080/10714839.2020.1809086

By Ran Abramitzky, Leah Boustan, Elisa Jácome, Santiago Pérez, and Juan David Torres

Combining full-count Census data with Census/ACS samples, the researchers provide the first nationally representative long-run series (1870–2020) of incarceration rates for immigrants and the U.S.-born. As a group, immigrants had lower incarceration rates than the US-born for the last 150 years. Moreover, relative to the U.S.-born, immigrants’ incarceration rates have declined since 1960: Immigrants today are 60% less likely to be incarcerated (30% relative to U.S.-born whites). This relative decline occurred among immigrants from all regions and cannot be explained by changes in immigrants’ observable characteristics or immigration policy. Instead, the decline likely reflects immigrants’ resilience to economic shocks.

Evanston, IL: Northwestern University, Institute for Policy Research, 2023. 62p.

By Amalia Campos-Delgado and Guillermo Yrizar Barbosa

On 3 September 2015, Mexican immigration authorities detained four Indigenous Tzeltal Mexicans who were travelling by bus to the northern state of Sonora. Despite identifying themselves as Mexican citizens, the authorities considered their documents false, and they were detained for nine days until their identities were certified. The Mexican State took four years to acknowledge publicly and apologise for this arbitrary detention. Similarly, in 2017, a 39-year-old man born in Oaxaca, living in the streets of Puebla after being deported by the United States Government, was detained for being ‘identified’ as a Salvadorian citizen by Mexican authorities. However, it would be a mistake to consider these cases an exception or anomaly in the Mexican Transit Control Regime. Drawing on statistical and archival information from 2010 to 2020, as well as semi-structured interviews conducted in 2021, in this article, we examine the arbitrary detention of Mexican citizens by Mexican immigration authorities. We highlight the multiple rights violated, question how these detentions have been framed in the official discourse and examine the outcome of these detentions. Our analysis sheds light on the racialisation of migration control in Mexico

International Journal For Crime, Justice And Social Democracy, 12(2), 47-58. doi:10.5204/ijcjsd.2890

By Mary Holper

Immigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall — federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act, which removed federal courts’ jurisdiction over discretionary decision to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield. This article explores justifications for unreviewable discretion and for stripping federal courts over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The article explores manners in which the judiciary can limit the reach of this jurisdiction-stripping statute, and in order to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions.

Boston College Law School Legal Studies Research Paper No. 607 2023.

By The International Detention Coalition

The arbitrary and indefinite immigration detention of Rohingya is harmful to refugees and their families. As Rohingya flee ongoing persecution in Myanmar and deteriorating security conditions in camps in Bangladesh, punitive immigration detention has not and will not deter them from coming to Malaysia for safety. Immigration detention is expensive, harmful and must be reformed.

A new joint report from the Protecting Rohingya Refugees in Asia (PRRiA) project demonstrates the far-reaching impact and trauma inflicted upon Rohingya refugees because of immigration detention. Rohingya in detention experience physical and psychological abuse that can compound pre-existing trauma. For detained children especially, the impact has long-term effects on their well-being.

The report also speaks to the incompatibility of detention practices with Malaysia’s desire to offer a protection-centred environment for persons in need.

International Detention Coalition, 2023. 32p,

By Andrés Dae Keun Kwon

Los Angeles County has a proud history of providing public defenders to people who cannot afford a lawyer to defend them in criminal court. On January 9, 1914, the county opened the first public defender office in the United States. In addition to being first, this office is the biggest in the nation. The Los Angeles County Public Defender’s Office (LACPD) currently employs about 700 public defenders, who handle approximately 300,000 criminal cases a year. And yet there is a crisis today in our county’s public defender system. In particular, LACPD has been grossly under-resourced as measured against recommended staffing ratios and compared to other California public defender offices. As a result, LACPD underserves a large and vital segment of the Los Angeles population: the immigrant community. This report, Defend L.A., examines the failures of the county’s public defender system and demands legal representation that, at a minimum, meets the standards of the Sixth Amendment to the U.S Constitution for all Los Angeles community members— including immigrants. The report documents many cases in which LACPD’s noncitizen clients pleaded to criminal dispositions triggering severe immigration consequences when more immigration-favorable alternative dispositions were available. Uninformed and unaware, LACPD’s noncitizen clients have pleaded guilty only to face mandatory deportation and permanent separation from family, community, and home—the loss “of all that makes life worth living.

Los Angeles: American Civil Liberties Union of Southern California, 2018. 80p.

By The United States Government Accountability Office; Rebecca Gambler, et al.

Within the Department of Homeland Security, ICE is responsible for providing safe, secure, and humane confinement for detained noncitizens in the United States. In that capacity, ICE oversees and at some detention facilities provides on-site medical care services. ICE also oversees referrals and pays for off-site medical care when services are not available at detention facilities. GAO was asked to review issues related to informed consent for medical care for noncitizens in immigration detention facilities. Among other things, GAO examined the extent to which ICE has policies for obtaining informed consent for medical care, and how selected facilities implemented the policies; and oversees implementation of policies related to informed consent to help ensure compliance. GAO interviewed ICE officials and medical staff from six facilities selected, in part, based on whether ICE staff provided on-site medical care. GAO also reviewed 48 medical files from these facilities. Further, GAO analyzed oversight results for fiscal years 2019 through 2021, and reviewed ICE documentation in light of federal internal control standards. What GAO Recommends GAO is making three recommendations, including that ICE require detention facilities to collect informed consent documentation from off-site providers, and then require a review of this documentation as part of its oversight mechanisms for detention facilities. The Department of Homeland Security concurred with each of the recommendations.

Washington, DC: GAO, 2022. 53p.

By The United States Government Accountability Office; Rebecca Gambler, et al.

In fiscal year 2021, Border Patrol reported about 1.7 million apprehensions of noncitizens between ports of entry—a 300 percent increase over fiscal year 2020. This included approximately 451,000 apprehensions of family unit members. Compounding this increase were continued concerns related to COVID-19 and physical distancing protocols that imposed space limitations on facilities. To address these concerns and reduce time in custody, Border Patrol and ICE initiated two new processes in 2021, referred to as NTR and parole plus ATD. Border Patrol released family units into the U.S. without first issuing them a charging document—generally a Notice to Appear—which places them into immigration court removal proceedings. Instead, Border Patrol instructed them to report to an ICE field office. ICE officials are to further process family unit members who report to field offices, such as issuing them a Notice to Appear. GAO was asked to review Border Patrol’s and ICE’s implementation of the NTR and parole plus ATD processes. This report describes (1) Border Patrol and ICE implementation of the NTR and parole plus ATD processes, and (2) ICE’s efforts to initiate removal proceedings for family unit members processed with NTRs or under parole plus ATD. GAO analyzed Border Patrol and ICE policies, guidance, and data on individuals processed with an NTR or under parole plus ATD and who reported to ICE as required. GAO also interviewed officials in Border Patrol and ICE headquarters and selected field locations.

Washington, DC: GAO, 2022. 58p.

By Xavier Becerra, et al.

As the California Department of Justice (Cal DOJ) issues its second report under Assembly Bill 103 (2017) (AB 103) about the conditions within locked facilities housing immigration detainees in California, the nation is in the midst of a struggle to control and prevent outbreaks of COVID-19. Detainees and staff in immigration detention facilities are particularly vulnerable due to the congregate nature of detention, and all parties connected to immigration detention—U.S. Immigration and Customs Enforcement (ICE), facility leadership and staff, off-site community hospitals, advocates, federal courts, and immigration detainees themselves—have been forced to respond to the crisis. Cal DOJ’s AB 103 review of the three immigration detention facilities featured in this report took place before the COVID-19 pandemic began, and insights gained from these and prior facility reviews prompted Attorney General Xavier Becerra to write to the Acting Secretary for Homeland Security on April 13, 2020, urging the release of immigration detainees and the adoption of safety protocols to minimize the spread of COVID-19. Nonetheless, while the average number of immigrants in ICE’s adult detention facilities across the nation decreased from 37,876 detainees in February 2020 to 19,989 detainees in September 2020, the overall average length of detention significantly increased during the same period from an average of 56.1 days to 91.3 days. This report presents Cal DOJ’s findings with respect to three privately-operated detention facilities: (1) the Adelanto ICE Processing Center (Adelanto), operated by The GEO Group, Inc.: (Geo Group); (2) the Imperial Regional Detention Facility (Imperial), operated by Management Training Corporation (MTC); and (3) the Otay Mesa Detention Center (Otay Mesa), operated by CoreCivic. Cal DOJ staff, along with correctional, medical, and mental health experts, toured each facility; interviewed staff and detainees; and reviewed and analyzed logs, policies, detainee records, and other documents to develop an understanding of the conditions of confinement and standard of care and due process provided to detainees at each facility. In addition, Cal DOJ administered two attorney surveys to analyze barriers and facilitation of due process in each of the three facilities, as well as the impact COVID-19 has had on detainees and their counsel.

San Francisco: California Office of the Attorney General, 2021. 160p.

By the Asylum Seeker Resource Centre

The release of this report marks ten years since Australian Prime Minister, Kevin Rudd, made the choice to send over 3000 men, women and children who sought asylum by sea to offshore detention centres and deny them permanent resettlement. The report touches on the stories of seven people subjected to offshore detention since July 19, 2013. The people interviewed and the Asylum Seeker Resource Centre call for the immediate evacuation of the 80 people remaining in Papua New Guinea (PNG), permanent resettlement for all, and a Royal Commission into offshore detention. The Albanese Government evacuated refugees from Nauru. However, people are still trapped in PNG and thousands have been denied the ability to rebuild their lives in Australia.

Footscray VIC : ASRC, 2023. 29p.

By Annika Lindberg

Deportation limbo traces the efforts of two Nordic welfare states, Denmark and Sweden, to address the so-called implementation gap in deportation enforcement. It offers an original, empirically grounded account of how often-futile, injurious policy measures devoted to pressuring non-deported people to leave are implemented and contested in practice. In doing so, it presents a critique of the widespread, normalised use of detention, encampment, and destitution, which routinely fail to enhance deportations while exposing deportable people to conditions that cause their premature death. The book takes the ‘deportation limbo’ as a starting point for exploring the violent nature of borders, the racial boundaries of welfare states, and the limits of state control over cross-border mobility. Building on unprecedented access to detention and deportation camps and migration offices in both countries, it presents ethnographic material capturing frontline officials’ tension-ridden efforts to regulate non-deported people using forced deportation, incarceration, encampment, and destitution. Using a continuum of state violence as the analytical lens, the book offers a uniquely comprehensive account of how the borders of Nordic welfare states are drawn through practices that subject racialised ‘others’ to expulsion, incarceration, and destitution. The book is the first to systematically document the renewed deportation turn in Denmark and Sweden, and to critically examine its implications: for the people targeted by intensified deportation measures, and for the individual officials, institutions, and societies enforcing them. It offers an important, critical contribution to current debates on the violence of deportation regimes, the politico-bureaucratic structures and practices that sustain them, and their human costs.

Manchester, UK: Manchester University Press, 2023. 205p.

By Maureen Meyer and Adam Isaacson

In particular, we analyze how the National Guard deployment has driven migrants to travel through more remote areas where they are more likely to fall prey to criminal groups, and how smugglers are adapting to this new shift. The report further examines how this crackdown has overwhelmed migrant detention centers, heightened concerns of inadequate screening of potential asylum seekers, and resulted in a rapid increase in asylum requests in Mexico. Finally, the report examines how U.S. assistance has supported Mexico’s migration enforcement and border security efforts along its southern border. The report’s final section provides recommendations on how the Mexican government can work to ensure the safety and well-being of migrants, asylum seekers, and refugees, and root out any corruption and abuse linked to security forces and migration agents who interact with these vulnerable populations. It also provides recommendations on how the U.S. government can support these efforts, while upholding its own national and international commitments to asylum seekers.   

Washington, DC: Washington Office on Latin America, 2019. 56p.

By Evan J. Criddle

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.

If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the immigration system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face a serious risk of death, torture, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.

UC Davis Law Review, Vol. 53; 2003.

By Mizue Aizeki, Ghita Schwarz, Jane Shim, and Samah Sisay

Cruel by Design: Voices of Resistance from Immigration Detention, a report by the Immigrant Defense Project and the Center for Constitutional Rights, shows how the harms associated with ICE detention practices are embedded in the structures of the immigration control regime rather than a manifestation of a broken system. In doing so, it offers a summary of U.S. detention laws to illustrate how the system is designed to make it as easy as possible for the federal government to exclude and deport people. It also shows how the detention system deploys multiple tactics to undermine the ability of individuals to fight deportation. In addition, the report highlights the stories of people who’ve been held in ICE detention, and their resistance and resilience in the face of a draconian system. Piecemeal reforms alone will not be sufficient for remedying the cruelty of this system. What is ultimately required is far-reaching transformation, one aimed at ending detention as a tool of the U.S. regime of exclusion.

New York: Immigrant Defense Project and Center for Constitutional Rights, 2022.  49p.

By Adam G. Lichtenheld,

Libya is a key destination and transit point for people on the move. Since 2017 – when the European Union (EU) endorsed a deal between Italy and Libya to crack down on irregular migration from Africa to Europe along the Central Migration Route – Libyan authorities and local armed groups have detained thousands of refugees, migrants, and asylum-seekers in the country.

An increasing number of reports from human rights organizations have revealed that detainees face massive overcrowding, dire sanitary conditions, and rampant human rights abuses. While there has been significant discussion of the potentially harmful effects of the current detention system in Libya, little is known about arrest and detention patterns and which refugee and migrant profiles are more vulnerable to being detained.
This report examines the social, economic, and demographic determinants of detention of refugees and migrants in Libya. Drawing on surveys of 5,144 refugees, migrants, and asylum-seekers, it compares the profiles and characteristics of those who reported being detained and those who did not in order to identify what factors make people on the move more likely to end up in detention. While the report focuses on the Libyan context, its findings have implications for understanding the drivers, dynamics, and consequences of migrant detention elsewhere. This is important given the growing trend among EU and other Western countries of outsourcing asylum and migration control to transit states in Africa, the Middle East, Southeast Asia, and Latin America.

Mixed Migration Centre, 2019. 36p.

By The Global Detention Project

Mexico has one of the largest immigration detention systems in the world, employing several dozen detention centres—euphemistically called estaciones migratorias—and detaining tens of thousands of people every year. Intense pressure from the United States and continuing migration from turmoil-wracked Central America have helped drive up detention numbers, which surpassed 180,000 in 2019. The COVID-19 pandemic further stressed the country’s migration response. It temporarily released most detainees after the onset of the pandemic even as the United States continued deporting both Mexican and third-country nationals to Mexico. In late 2020, the country adopted reforms to its migration law prohibiting the detention of all children, though many observers expressed scepticism over whether it would be respected.

Geneva: Global Detention Project, 2021. 37p.

By Hanna Gros

Despite its reputation as a refugee-welcoming and multicultural country, Canada detains thousands of people on immigration-related grounds every year in often abusive conditions. This includes many fleeing persecution and seeking protection in Canada. Based on interviews with former immigration detainees and their relatives, mental health experts, academics, lawyers, civil society representatives, and government officials, “I Didn’t Feel Like a Human in There”, a report by Human Rights Watch and Amnesty International, documents how people in immigration detention are regularly handcuffed, shackled, and held with little to no contact with the outside world. The report finds that many are held in provincial jails with the regular jail population and even subjected to solitary confinement. Canadian law does not establish time limits on detention and immigration detainees can be held for months or years. Many immigration detainees develop suicidal thoughts as they begin to lose hope that they will be released. Individuals with psychosocial disabilities experience discrimination throughout the immigration detention process. They are more likely to be detained in provincial jails rather than immigration holding centers, and many also face significant barriers to release with stricter release conditions. The report calls on the Canadian authorities to gradually abolish immigration detention. Under no circumstances should a person for immigration-related reasons be treated in a punitive manner, including being subjected to solitary confinement, or detained in facilities used for criminal law enforcement, such as jails, or in jail-like facilities.

New York: Human Rights Watch, 2021. 125p.

By New York Lawyers for the Public Interest

“Still Detained and Denied,” documents serious, often life-threatening deficiencies in the medical care provided to New Yorkers in area immigration detention facilities. The healthcare crisis in immigration detention has worsened over the past several years and has become even more urgent as COVID-19 spreads through communities, including in federal detention facilities and local jails. Based on more than 100 people’s experiences in New York and New Jersey immigration detention jails, NYLPI’s report outlines the government’s damaging and sometimes deadly failures to provide adequate medical treatment, identifies the coronavirus pandemic as an additional reason to release all immigrant detainees, and makes extensive recommendations for change.

New York: New York Lawyers for the Public Interest, 2020. 37p.

By Arezo Malakooti

The overall objective of this study is to understand the political economy of migrant detention in Libya, in both the official and non-official detention systems. The study was launched in October 2018 and the report was finalized in April 2019. The study was conducted by means of a qualitative approach, based on primary field research spanning four research modules: literature review, initial screening of detention centres in Libya, primary field interviews with migrants and with a variety of key informants (armed groups, authorities, smugglers, detention-centre staff, programme implementers). The methodology was route focused and, as such, involved interviews in four countries: Niger, Libya, Italy and Malta. A total of 85 key informant interviews were conducted and 75 in-depth interviews were conducted with migrants (160 in-depth interviews in total).

Geneva: Global Initiative Against Transnational Organized Crime, 2019. 111p.

By Ceres Policy Research Institute

As detention capacity increases, so do ICE apprehensions. This link illuminates certain truths for the immigrant rights movement. If the existence of an immigration detention center brings the harms of ICE’s enforcement presence to a community, the inverse tells us that immigrant community members become safer when a detention facility shuts down. Moreover, it sheds light on how eliminating detention capacity is crucial to scaling back ICE’s enforcement regime. Because immigration detention is the crux of ICE’s deportation pipeline and a driving force behind enforcement activity patterns, shrinking and ultimately abolishing the detention system must be a priority in the fight for immigrant justice. ICE has built and expanded a massive infrastructure of immigration jails, surveillance programs, and enforcement agents. The current enforcement-centered response to migration, supported by ever-increasing Congressional appropriations, has resulted in hundreds of thousands of deportations each year. Over the last two decades, the budget for ICE’s Enforcement and Removal Operations (ERO), which includes its account for immigration detention, has quadrupled. Prior to the COVID-19 pandemic, detention levels hit historic peaks of more than 50,000 people per day.

Detention Watch Network and the Immigrant Legal Resource Center, 2022. 10p.