Publications

Our first Annual Report now published!

It has been a challenging, emotional, exciting and ultimately very successful first year for the Habeas Corpus Project. We are proud to present to you all our very first Annual Report. Click below to download!

There was a point last year when we considered giving up, but thanks to the tremendous support and encouragement we received we are now stronger than ever and dedicated to continuing for many years to come. Thank you to all those who showed their support either by encouragement, donations or volunteering with us last year.

Annual Report Cover jpegClick the link to download the Habeas Corpus Project Annual Report 2014-2015

September 2015: Academic Publications on Unlawful Detention

Recent updates on academic articles, books and reports from around the world on unlawful immigration detention. The following portfolio is compiled by Stephanie Silverman as part of the Detention Workshop, an academic discussion group on immigration detention.

BOOK: A new book from our colleague, César Cuauhtémoc García Hernández: 

Written by the author of the crImmigration.com blog, Crimmigration Law maps the legal doctrine that comprises U.S. crimmigration law, including two chapters on detention. Part of the section on how criminal adjudications affect immigration proceedings, chapter 4 addresses legal authority regarding immigration detention and its limitations. In a later section on crimmigration enforcement mechanisms, chapter 9 highlights the detention system’s expansion and conditions before turning to alternatives to detention. More information is available at http://crimmigration.com/book/

ARTICLES (6):

1) Kagan, M. (2015). “Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States.” Texas International Law Journal Scholarly Works: 1 – 23.

Governments have advanced the argument that asylum-seekers may be detained in order to deter other would be asylum-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This Essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:

  1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?
  2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, or is it limited to

certain exceptional circumstances?

  1. If deterrence is a legitimate goal, is there any effective proportionality limit on the measures a government may take against asylumseekers?

The American and Israeli courts did not answer these questions in the same way, and they did not foreclose all potential future uses of deterrence by their respective governments. But they signaled considerable judicial resistance, which may make it more difficult for governments to justify mass detention in the future.

See: http://scholars.law.unlv.edu/facpub/936/?utm_source=scholars.law.unlv.edu%2Ffacpub%2F936&utm_medium=PDF&utm_campaign=PDFCoverPages

2) Mullins, K. (2015). “Mandatory Detention: Why the Colloquial Name for INA Sec. 236(c) Is a Misnomer and How Alternatives to Detention Programs Can Fulfill Its Custody Requirement ” National Lawyers Guild Review 72(01): 34 – 54.

This article seeks to demonstrate, through careful examination and interpretation of INA § 236(c), that the Department of Homeland Security (DHS) could use existing Alternatives to Detention (ATD) programs and remain in perfect compliance with the statutory mandate, which clearly requires that DHS place noncitizens convicted of certain crimes into “custody.” Part I will briefly describe the legislative history of INA § 236(c) and explain the relevant statutory provisions. Parts II and III will examine Congress’s selective use of the terms “custody” and “detain,” both within INA § 236 specifically and within other related provisions of the INA. As Congress declined to define  appropriately rely on principles of habeas corpus jurisprudence to conclude that “custody” as used in INA § 236(c) may be fulfilled by the use of ATD programs. Part V will examine recent agency precedent to show that the Board of Immigration Appeal’s (hereafter “Board”) holding in Matter ofAguilar- Aquino”0 that an electronic monitoring program did not constitute “custody” for purposes of 8 C.F.R. § 1236.1 (d)(1) does not require that outcome for the entirely separate mandatory custody provision at INA § 236(c). Instead, it xwill demonstrate how the 2008 decision of a Los Angeles IJ in Matter ofXI could be used as a model for the application of habeas corpus jurisprudence to define “custody” under INA § 236(c) as encompassing ATD programs. Part VI will show that in spite of legislative history suggesting that INA § 236(c) encompasses a “lock ’em up” approach to noncitizens convicted of crimes, recent ICE statistics and current proposed legislation reveal that the use of electronic monitoring furthers the intended purpose of the statutes.

3) Noferi, M. L. and R. Koulish (2015). “The Immigration Detention Risk Assessment.” Georgetown Immigration Law Journal 29: 45 – 93.

In early 2013, U.S. Immigration and Customs Enforcement (“ICE”) deployed nationwide a new automated risk assessment tool to help determine whether to detain or release noncitizens pending their deportation proceedings. Adapted from similar evidence-based criminal justice reforms that have reduced pretrial detention, ICE’s initiative now represents the largest pre-hearing risk assessment experiment in U.S. history — potentially impacting over 400,000 individuals per year. However, to date little information has been released regarding the risk assessment algorithm, processes, and outcomes.

This article provides the first comprehensive examination of ICE’s risk assessment initiative, based on public access to ICE methodology and outcomes as a result of Freedom of Information Act requests. This article argues that immigration risk assessment in its current form will not reduce current over-detention trends. The unique aspects of immigration enforcement, laws, and the impacted population will likely frustrate accurate calibration of the risk tool, and effective implementation of even a calibrated tool — in turn frustrating constructive impact of ICE’s risk assessment initiative on over-detention. Consequently, the immigration risk assessment may only add a scientific veneer to enforcement that remains institutionally predisposed towards detention and control. 

Additionally, this article argues that even if more accurate, evidence-based immigration detention were achieved under a future risk assessment regime, it would nonetheless likely be accompanied by several disadvantages. Particularly, risk assessment could facilitate a transition from mass detention to mass supervision of an even wider net of supervisees, by justifying lesser deprivations of liberty such as electronic supervision.

See: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2635247

4) Podkul, J. (2015). Detention and Treatment of Unaccompanied Migrant Children at the U.S.-Mexico Border. Childhood and Migration in Central and North America: Causes, Policies, Practices and Challenges. R. Katz and J. Kelsey. California, Center for Gender & Refugee Studies, UC Hastings.

See:http://cgrs.uchastings.edu/sites/default/files/14_WRC_Border_English_0.pdf

5) Puthoopparambil, S. J., et al. (2015). “Quality of life among immigrants in Swedish immigration detention centres: a cross-sectional questionnaire study.” Global Health Action 8: 1 – 10.

Background: Detention of immigrants negatively affects their health and well-being. Quality of life (QOL) is a broad concept incorporating the self-evaluation of one’s own health and well-being that can provide an understanding of the health and well-being of immigrant detainees. The aim of this study was to estimate QOL among immigrant detainees in Sweden and to assess its relationship with the services provided in detention centres and with the duration of detention.

Design: All immigrants in all five existing Swedish detention centres (N193) were invited to participate in the study (n127). In this cross-sectional study, QOL was measured using the WHOQOL-BREF questionnaire, which was administered by the first author. The questionnaire contained four additional

questions measuring participants’ satisfaction with the services provided in detention. Associations between QOL domain scores and service satisfaction scores were assessed using regression analysis. The Spearman’s rank correlation coefficient was calculated to measure the degree of association between the duration of

detention and QOL scores.

Results: The mean QOL domain scores (out of 100) were 47.0, 57.5, 41.9, and 60.5 for the environmental, physical, psychological, and social domains, respectively. The level of support detainees received from detention staff was significantly positively associated with detainees’ physical (badjusted 3.93, confidence interval [CI] 0.067.80) and psychological (badjusted 5.72, CI 1.779.66) domain scores. There was also significant positive   between detainees’ satisfaction with the care they received from detention staff and the domain scores. The general health score in the WHOQOL-BREF was significantly associated with the detainees’ ability to understand the Swedish or English languages. Although not statistically significant, a longer duration of detention was negatively correlated with QOL scores.

Conclusion: Immigrant detainees report low QOL. Services provided at the centres, especially the support received from detention staff, is positively associated with their QOL. A review of detention guidelines addressing language barriers, staff training, and duration of detention is highly recommended.

See: http://www.globalhealthaction.net/index.php/gha/article/view/28321/pdf_94

April 2015: Academic Publications on Unlawful Detention

Recent updates on academic articles, books and reports from around the world on unlawful immigration detention. The following portfolio is compiled by Stephanie Silverman as part of the Detention Workshop, an academic discussion group on immigration detention.

ARTICLES
de Noronha, L. (2015). WP-111-15: Unpacking the figure of the ‘foreign criminal’: Race, gender and the victim-villain binary. International Migration Institute Working Papers. Oxford, University of Oxford.
The UK’s Foreign National Prisoner (FNP) crisis’ of June 2006 provides a key moment to unpack the figure of the ‘foreign criminal’ through. Through an analysis of media articles, Commons debates and NGO documents, I discuss the and gendered stereotypes that were invoked in the construction of ‘foreign criminals’, as they were positioned within the victim-villain binary that characterises migration debates. In explaining the specific kinds of migrantness and criminality made to represent the FNP ‘crisis’, I argue that race and gender matter, and that they work through one another. The FNP ‘crisis’ incensed the media and politicians who framed the issue in terms of dangerous foreign men whose hypermasculinist violence presented a severe and existential threat to the British people. These images relied upon race for their intelligibility. While NGOs and advocates sought to challenge the idea that all, or even most, ‘foreign criminals’ deserve to be deported, they still tended to frame their arguments in terms of victims and villains. In doing so, advocates failed to challenge the gendered and racialised stereotypes that distinguish good migrants from bad ones – victims from villains. In the end, advocates and academics should retain critical distance from state categories if they are to avoid reifying these deeply entrenched narratives surrounding race and gender.
Puthoopparambil, S. J., et al. (2015). “‘‘It is a thin line to walk on’’: Challenges of staff working at Swedish immigration detention centres.” International Journal of Qualitative Studies on Health and Well-Being 10: 11.
Detention of irregular migrants awaiting deportation is widely practiced in many countries and has been shown to have profound negative impact on health and well-being of detainees. Detention staff, an integral part of the detention environment, affect and are affected by detainees’ health and well-being. The objective of the study was to explore experiences of staff working at Swedish immigration detention centres. Fifteen semi-structured interviews were conducted with staff in three Swedish detention centres and were analysed using thematic analysis. The results indicate that the main challenge for the staff was to manage the emotional dilemma entailed in working as migration officers and simultaneously fellow human beings whose task was to implement deportation decisions while being expected to provide humane service to detainees. They tried to manage their dilemma by balancing the two roles, but still found it challenging. Among the staff, there was a high perception of fear of physical threat from detainees that made detention a stressful environment. Limited interaction between the staff and detainees was a reason for this. There is thus a need to support detention staff to improve their interaction with detainees in order to decrease their fear, manage their emotional dilemma, and provide better service to detainees. It is important to address staff challenges in order to ensure better health and well-being for both staff and detainees.
Sen, P., et al. (2014). “Mental health care for foreign national prisoners in England and Wales.” Journal of Mental Health 23(06): 333 – 339.
Background: The foreign national prisoner (FNP) population in England and Wales has disproportionately increased in size, but mental health research in this group has been limited.
Aims: Define the FNP group, review their understood characteristics, identify service challenges and make onward recommendations.
Methods: A literature search of Pubmed and Google Scholar was undertaken. Relevant articles/reports were identified and reviewed.
Results: Many FNPs face challenges: isolation (with limited family contacts); language barriers; difficulties accessing services; prejudice and discrimination; active legal issues regarding immigration. These are compounded by poor quality interpreting services, institutional barriers including racial assumptions propagated by forces of legislation, the disrupted local care pathways and common mental health problems (including post-traumatic stress disorder, depression and anxiety). Pre-detention trauma, self-harm and suicide are over-represented.
Conclusions: Further prevalence and unmet needs research is urgently required. A validated screening tool could assist identification and service access for FNPs with mental health problems. Services providing relatively inexpensive interventions specific to the needs of FNPs (e.g. narrative exposure therapy) should be piloted.
Slack, J., et al. (2015). “In Harm’s Way: Family Separation, Immigration Enforcement Programs and Security on the US-Mexico Border.” Journal on Migration and Human Security 3(02): 109 – 128.
The Consequence Delivery System (CDS) is a suite of border and immigration enforcement programs designed to increase the penalties associated with unauthorized migration in order to convince people not to return (Rosenblum 2013). Despite its inauguration in 2011, many aspects of the CDS are not new. CDS does however, mark a shift from the deterrent strategy that, in the 1990s that relied heavily on the dangers of the natural terrain to dissuade unauthorized border crossers, to one that actively punishes, incarcerates, and criminalizes them. This article presents findings from the Migrant Border Crossing Study, a random sample survey of 1,100 recently deported migrants in six cities in Mexico conducted between 2009 and 2012. It examines the demographics and family ties of deportees, their experiences with immigration enforcement practices and programs under the CDS, and how these programs have reshaped contemporary migration and deportation along the US-Mexico border. The article covers programs such as criminal prosecutions of illegal entries under Operation Streamline, and the Alien Transfer and Exit Program (ATEP) or lateral repatriation program which returns immigrants to different locations from where they illegally entered. In relationship to these programs, it considers issues of due process and treatment of deportees in US custody. It also examines interior enforcement under Secure Communities, which, during the study period, comprised part of the overarching border security plan, and screened virtually everybody arrested in the United States against immigration databases.
The article concludes that these programs do not have a strong deterrent effect. Instead, immigration enforcement has led to a “caging effect” over the past two decades which has disrupted seasonal migration flows, increased familial and social ties to the United States, and decreased the probability of returning to Mexico once in the United States. The development of strong family and other ties to the United States contributes to a greater resolve to return post-deportation.
Williams, L. (2015). “From immigration detention to destitution.” Criminal Justice Matters 99(01): 12 – 13.
BOOKS
Terrio, S. J. (2015). Whose Child Am I?: Unaccompanied, Undocumented Children in U.S. Immigration Custody. Los Angeles, University of California Press.
In 2014, the arrest and detention of thousands of desperate young migrants at the southwest border of the United States exposed the U.S. government’s shadowy juvenile detention system, which had escaped public scrutiny for years. This book tells the story of six Central American and Mexican children who are driven from their homes by violence and deprivation, and who embark alone, risking their lives, on the perilous journey north. They suffer coercive arrests at the U.S. border, then land in detention, only to be caught up in the battle to obtain legal status. Whose Child Am I? looks inside a vast, labyrinthine system by documenting in detail the experiences of these youths, beginning with their arrest by immigration authorities, their subsequent placement in federal detention, followed by their appearance in deportation proceedings and release from custody, and, finally, ending with their struggle to build new lives in the United States. This book shows how the U.S. government got into the business of detaining children and what we can learn from this troubled history.
Wadhia, S. S. (2015). Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. New York, NYU Press.
When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer Leon Wildes made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status pursuant to INS’s (now DHS’s) policy of prosecutorial discretion. In U.S. immigration law, the agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of immigration law. A prosecutorial discretion grant is important to an agency seeking to focus its priorities on the “truly dangerous” in order to conserve resources and to bring compassion into immigration enforcement. The Lennon case marked the first moment that the immigration agency’s prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama Administration’s Deferred Action for Childhood Arrivals or DACA program, a record number of deportations and a stalemate in Congress to move immigration reform.
Beyond Deportation is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law. It provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the powerful role it plays in protecting individuals from deportation and saving the government resources. Shoba Sivaprasad Wadhia draws on her years of experience as an immigration attorney, policy leader, and law professor to advocate for a bolder standard on prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of “deferred action” in the law as a formal benefit.
Wong, T. K. (2015). Rights, Deportation, and Detention in the Age of Immigration Control. Palo Also, Stanford University Press.
Immigration is among the most prominent, enduring, and contentious features of our globalized world. Yet, there is little systematic, cross-national research on why countries “do what they do” when it comes to their immigration policies. Rights, Deportation, and Detention in the Age of Immigration Control addresses this gap by examining what are arguably the most contested and dynamic immigration policies—immigration control—across 25 immigrant-receiving countries, including the U.S. and most of the European Union. The book addresses head on three of the most salient aspects of immigration control: the denial of rights to non-citizens, their physical removal and exclusion from the polity through deportation, and their deprivation of liberty and freedom of movement in immigration detention.
In addition to answering the question of why states do what they do, the book describes contemporary trends in what Tom K. Wong refers to as the machinery of immigration control, analyzes the determinants of these trends using a combination of quantitative analysis and fieldwork, and explores whether efforts to deter unwanted immigration are actually working.
REPORTS
Abu-Hayyeh, R. and F. Webber (2015, March). “Unwanted, Unnoticed: An audit of 160 asylum and immigration-related deaths in Europe.” European Research Programme of the Institute of Race Relations Briefing No 10. Retrieved 07 April, 2015, from http://www.irr.org.uk/news/deaths-of-europes-unwanted-and-unnoticed-migrants-exposed/.
The IRR publishes a disturbing new report, Unwanted, unnoticed: an audit of 160 asylum and immigration-related deaths in Europe, revealing the extent of Europe’s departure from its vaunted humanitarian ideals.
The deaths over the last five years, in the detention and reception centres, the streets and the squats of Europe, are a product of the rightlessness and the lack of human dignity European governments accord to migrants and asylum seekers. They are also the tip of the iceberg; the true figures are unknown, as in many countries migrants’ deaths are not recorded or investigated. But of the deaths whose circumstances are known, the largest number, sixty, were suicides; 26 were caused by untreated illness or illness exacerbated by detention, while sixteen were caused by destitution.
Athwal, H. and J. Bourne (2015, 23 March). “Dying for Justice.” Institute for Race Relations Publications. Retrieved 07 April, 2015, from http://www.irr.org.uk/news/dying-for-justice/.
On Monday 23 March, the Institute of Race Relations published Dying for Justice which gives the  background on 509 people (an average of twenty-two per year) from BAME, refugee and migrant communities who have died between 1991-2014 in suspicious circumstances in which the police, prison authorities or immigration detention officers have been implicated.

It concludes that:
-a large proportion of these deaths have involved undue force and many more a culpable lack of care;
-despite critical narrative verdicts warning of dangerous procedures and the proliferation of guidelines, lessons are not being learnt; people die in similar ways year on year;
-although inquest juries have delivered verdicts of unlawful killing in at least twelve cases, no one has been convicted for their part in these deaths over the two and a half decades of the research;
-privatisation  and sub-contracting of custodial,  health and other services  compounds concerns and makes it harder to call agencies to account;
-Family and community campaigns have been crucial in bringing about any change in institutions and procedures.
Fratzke, S. (2015, March). “Not Adding Up: The Fading Promise of Europe’s Dublin System.” Migration Policy Institute Reports. Retrieved 15 March, 2015, from http://migrationpolicy.org/research/not-adding-fading-promise-europes-dublin-system.
The chief purpose of the European Union’s Dublin Regulation—adopted as the first element of the new Common European Asylum System (CEAS) in 2003 and recast in 2013—is to act as a mechanism that swiftly assigns responsibility for processing an individual asylum application to a single Member State. It seeks to ensure quick access to protection for those in need while discouraging abuses of the system by those who would “shop” for the Member State with the most favorable asylum practices or reception conditions. As long as separate national asylum systems exist within a European area without internal border controls, Dublin—or a mechanism like it—will remain a necessary element of any European approach to asylum.
However, as implemented, the Dublin system is largely failing to achieve its two primary goals. Low effective transfer rates and a persistently high incidence of secondary movement among asylum seekers have undermined the efficiency of the Dublin system. In addition, asylum advocates have criticized Dublin for procedural delays in the evaluation of protection claims, which may disrupt family unity and put vulnerable individuals at risk. Crucially, the regulation does not recognize or address the main factor underlying the Dublin system’s problems: despite the harmonization efforts of the CEAS, essential differences remain in the asylum procedures, reception conditions, and integration capacity of EU Member States. These differences invalidate Dublin’s core assumption that asylum applicants will receive equal consideration and treatment regardless of where they submit their claims.
This report examines the key criticisms of the Dublin system as it stands now, with special attention to those that address the efficient operation of the European asylum system and the ability of applicants to quickly access asylum procedures and protection. The report then evaluates the potential of the recently adopted recast of the Regulation (Dublin III), and concludes by recommending several topics for consideration during the European Commission’s scheduled 2016 review of the Dublin system.
Pollet, K. and H. Soupios-David (2015). What’s in a name? The reality of First “Reception” at Evros: AID Fact-Finding Visit in Greece. Brussels, European Council on Refugees and Exiles (ECRE) / Asylum Information Database (AIDA) / European Programme on Integration and Migration (EPIM). 28.
ECRE’s visit to Fylakio’s First Reception Centre shows asylum seekers stuck in ‘detention carrousel’
Despite its potential, the Greek system of referral of third country nationals to the appropriate procedures (known as ‘first reception’), coupled with a dramatic lack of reception places, results in practice in asylum seekers and migrants, including children, being held in detention, often for prolonged periods. This is the conclusion of a report published this week following an ECRE delegation visit to the Fylakio First ‘Reception’ Centre and the adjacent Fylakio Detention Centre in the Evros region.

 

January 2015: Academic Publications on Unlawful Detention

Our first of regular updates on recent academic articles from around the world on unlawful immigration detention. The following portfolio is compiled by Stephanie Silverman as part of the Detention Workshop, an academic discussion group on immigration detention.

Anderson, S. and J. Ferng (2014). “No Boat: Christmas Island and the Architecture of Detention.” Architectural Theory Review 18 (02): 212 – 226.

This article uses Christmas Island as a site to discuss the contested history of Australian immigration in terms of the built environment. Offshore detention centres and the political systems for detaining asylum seekers pose substantial demands of institutional design, control of populations, and psychic anxieties associated with the arrival of foreigners. Systems of detention are explored through the topics of territory, human labour, boats as visual signs, and the buildings constructed to house detainees. Entangled orders of security expose detention as a timely subject for architectural intervention and commentary.

Athwal, H. (2015). “‘I don’t have a life to live’: deaths and UK detention.” Race & Class 56 (03): 50 – 68.

The Institute of Race Relations has over the last twenty-three years been monitoring the 508 deaths in custody in suspicious circumstances of individuals from BME, migrant and refugee communities, which rarely make the headlines and for which no person is ever convicted (to be published as the report Dying for Justice). Here, in an extract, the author examines the culture of racism and the impact of privatisation and sub-contracting in the detention and deportation of ‘failed’ asylum seekers. In case after case it exposes how the vulnerable, mentally- and physically-ill are neglected – leading to deaths by self-harm and inadequate treatment. The death during deportation of Joy Gardner, which involved disproportionate and reckless use of force, is examined in depth. The use of equipment of control for those who are clearly fearful of being forcibly returned, remains a vexed issue.

Cabot, J. A. (2014). “Problems Faced by Mexican Asylum Seekers in the United States.” Journal on Migration and Human Security 2(04): 361 – 377.

Violence in Mexico rose sharply in response to President Felipe Calderón’s military campaign against drug cartels which began in late 2006. As a consequence, the number of Mexicans who have sought asylum in the United States has grown significantly. In 2013, Mexicans made up the second largest group of defensive asylum seekers (those in removal proceedings) in the United States, behind only China (EOIR 2014b). Yet between 2008 and 2013, the grant rate for Mexican asylum seekers in immigration court fell from 23 percent to nine percent (EOIR 2013, 2014b).

This paper examines—from the perspective of an attorney who represented Mexican asylum seekers on the US-Mexico border in El Paso, Texas—the reasons for low asylum approval rates for Mexicans despite high levels of violence in and flight from Mexico from 2008 to 2013. It details the obstacles faced by Mexican asylum seekers along the US-Mexico border, including placement in removal proceedings, detention, evidentiary issues, narrow legal standards, and (effectively) judicial notice of country conditions in Mexico. The paper recommends that asylum seekers at the border be placed in affirmative proceedings (before immigration officials), making them eligible for bond. It also proposes increased oversight of immigration judges.

Noferi, M. L. (2014). “Making Civil Immigration Detention ‘Civil,’ and Examining the Emerging U.S. Civil Detention Paradigm.” Journal of Civil Rights & Economic Development 27: 101 – 154.

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest civil detention systems — immigration detention and sex offender civil commitment — to ascertain the value of the “civil” label of detention reform. It finds the emerging civil detention paradigm to be an incarcerative model presuming round-the-clock confinement but with lower security, as well as increasing, near-criminal procedural protections. Thus, the “civil” label of reform has little meaning, either to the individual’s deprivation of liberty or the expressive message communicated. More meaningful and more “civil” reform would be to implement a system that detains less, not just better. Looking forward, I offer a prescriptive framework for a civil detention system — one that detains far less frequently, for shorter periods, and in non-secure facilities not constituting “detention” as traditionally conceived.

Forthcoming Publications

We are currently communicating with academics, NGO’s and other organisations to find relevant research, reports and statistics relating to unlawful detention in the UK and abroad. We aim to publish such work on our website with the consent and co-operation of the authors. We further hope to commission research in to specific areas of unlawful detention in the future and publish findings on this website.