Volume 36
Issue
1
Date
2021

Detention as Deterrent: Denying Justice to Immigrants and Asylum

by Maureen A. Sweeney, Sirine Shebaya, and Dree K. Collopy

In the first year of the Biden administration, the United States finds itself in a unique moment of opportunity to reimagine the historical (mis)use of immigration detention as a means of deterring unauthorized migration and of dissuading immigrants from vigorously advocating for their legal rights. The pandemic has significantly reduced the number of people in immigration detention, which gives policymakers an opportunity to take stock of the nation’s historical mass incarceration of immigrants and acknowledge its substantial costs and the many viable alternatives.

This Article shines a light on the successive Obama and Trump administrations’ wrongful use of detention to deter migration and limit due process as a legal and policy matter and on the high human and financial costs of those policies. U.S. immigration law permits the detention of immigrants solely for the purposes of ensuring their appearance for removal proceedings and protecting public safety. However, a review of the two most recent administrations’ actions shows that detention has been used as a cudgel designed to make the U.S. immigration system daunting enough to deter people who would otherwise seek to benefit from it. Detention takes a heavy toll—on a human level and on our nation’s obligations to humanitarian protection, the quality of legal process, and the national budget.

The Biden administration and a new Democratic-controlled Congress are setting out to make their own mark on immigration policy. It is imperative that before or as they do so, they carry out an unflinching assessment of the efficacy and costs of current immigration detention policy, which runs afoul of our national values, domestic and international laws, and common sense. Doing so will reveal our distorted national immigration detention policy as one of the drivers of mass incarceration for people of color. Policymakers should seize this unique opportunity to end it.

Continue reading Detention as Deterrent: Denying Justice to Immigrants and Asylum

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