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Lock ‘Em up: Determining the True Cost of Prolonged Mandatory Detention of Noncitizens under §1226(c) of the Immigration and Nationality Act

Lock ‘Em up: Determining the True Cost of Prolonged Mandatory Detention of Noncitizens under §1226(c) of the Immigration and Nationality Act

Laura Savall

David Balderramas is a blue-collar steel worker in Texas by day and a handyman by night.[1] Like many Americans, he works two jobs to provide for his family.[2] David and his wife came to the United States in 1956 for a better life and to start a family.[3]  They became legal permanent residents and regular taxpayers.[4] Unfortunately, David used to be an alcoholic and was convicted for driving while intoxicated.[5] After serving time for his crime, in 1998, Immigration and Naturalization Services arrested David at his home and soon after began the deportation process.[6] If the United States deports David, he will leave his two children, both U.S. citizens, and his diabetic wife to fend for themselves.[7]

Stories like David’s are not unique. Thousands of families in the United States have family members facing deportation.[8] Unfortunately, 23 percent of noncitizens awaiting deportation do not receive individual bond hearings because of the crimes they have committed.[9]

The duration of mandatory detention before their removal proceedings is a concern for many detained noncitizens. The amount of time a person spends in custody before deportation varies from case to case.

Generally, the Immigration & Nationality Act (INA) limits mandatory detention to six months.[10] However, the government may detain noncitizens over the six-month limit if they meet one-of-two exceptions.[11] They must show that the noncitizen is either (1) a flight risk or (2) a danger to the community.[12] Courts in the Second, Ninth, Tenth, and Eleventh Circuits hold that the government may only hold noncitizens for six months before their detention becomes unreasonable.[13] In these circuits, the government must demonstrate a flight risk or danger to community to justify continued holding.[14] Meanwhile courts in the First, Third and Sixth Circuits give the Attorney General more discretion when determining a reasonable period of detention.[15] Noncitizens are not equally protected by §1226(c) because only half of the circuit courts impose a strict six-month holding limit. Meanwhile noncitizens, in the other jurisdictions, must wait until their detention has become unreasonable, many times averaging over one year.[16]

This Note examines the true cost of prolonged mandatory detention and urges the Supreme Court to take socio-economic factors into account when upholding a six-month limit to mandatory detention.[17] The economic harms suffered by noncitizens and their families outweigh any potential benefits when the government holds noncitizens for an unreasonable length of time.[18] Each noncitizen should be guaranteed Due Process equally and all courts should uphold the six-month limit outlined in the Immigration and Nationality Act. Unfortunately, the length of mandatory detention will only increase under the Trump Administration’s harsh immigration reform.[19] American tax payers must know the economic and societal ramifications of prolonged mandatory detention.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] Daniel Kanstroom, Deportation Laws Destroy Lives, SALON (July 15, 2012), http://www.salon.com/2012/07/15/how_can_they_do_this_to_us/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Annually, over 100,000 noncitizen parents are deported, leaving their families without their support. Families For Freedom, http://familiesforfreedom.org/organizing/american-kids-immigrant-families. The detention of noncitizens under §1227 is only part of the larger problem of mass detention before deportation. Each day, more than 40,000 men, women, and children sleep in jails awaiting deportation. Cecillia Wang, For Immigrants, the Threat of Indefinite Detention, NY Times:Op-Docs, https://www.nytimes.com/2016/12/19/opinion/indefinite-immigrant-detention-opdocs-vr.html?_r=0 (last visited Feb. 27, 2017).

[9] Alan Neuhauser, Supreme Court to Consider Indefinite Detention for Immigrants, U.S. News (Nov. 29, 2016), http://www.usnews.com/news/national-news/articles/2016-11-29/supreme-court-to-consider-indefinite-detention-for-immigrants

[10] Unless the noncitizen is deemed a flight risk or danger to their community. 8 U.S.C. § 1226(c)(2) (2016).

[11] 8 U.S.C. § 1226(c)(2) (2016). This section of the INA allows for detention past the six-month limit if the government shows the noncitizen to be either (1) a flight risk or (2) a danger to the community if released from custody.

[12] These exceptions ensure that the noncitizen shows up for their removal proceedings and protect the community at large. Id.

[13] Lora v. Shanahan, 804 F.3d 601, 611(2d Cir. 2015) (holding Lora’s indefinite detention without a bond hearing violated his due process rights); Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1210 (11th Cir. 2016) (ruling that Sopo’s four year detention under §1226(c) violated due process); Phu Chan Hoang v. Comfort, 282 F.3d 1247, 1252 (10th Cir. 2002) (holding that individual hearings protect due process unlike broad presumption of dangerousness); Rodriguez v. Robbins, 715 F.3d 1127, 1130 (9th Cir. 2013) (ruling a neutral-decision maker should hold individual hearings to determine if prolonged detention is reasonable).

[14] Id.

[15] Reid v. Donelan, 819 F.3d 486, 490 (1st Cir. 2016) (extending the six-month limit to an individualized approach when determining the reasonableness of mandatory detention); Diop. v. ICE, 656 F.3d 486, 491 (3d Cir. 2011) (extending detention limit to one of reasonableness instead of a strict-six-month limit); Ly v. Hansen, 351 F.3d 263, 275 (6th Cir. 2003) (giving INS discretion to hold a noncitizen for a reasonable time while processing removal proceedings).

[16] Id.

[17] Socio-economic factors include: economic factors and societal factors of mandatory detention.

[18] ICE spends $159 per day per one detained noncitizen. Organizations estimate ICE could save $1.44 billion annually if they limited mandatory detention to noncitizens convicted of violent crimes. This would reduce their spending by 79 percent. National Immigration Forum Staff, The Math of Immigration Detention, National Immigration Forum (Aug. 22, 2013), http://immigrationforum.org/blog/themathofimmigrationdetention/#_ftn18; Reid v. Donelan, 819 F.3d 486, 495 (1st Cir. 2016) (using an individualized approach when determining the reasonableness of mandatory detention); Diop. v. ICE, 656 F.3d 486, 495 (3d Cir. 2011) (extending detention limit to one of reasonableness instead of a strict-six-month limit); Ly v. Hansen, 351 F.3d 263, 275 (6th Cir. 2003) (giving INS discretion to hold a noncitizen for a reasonable time while processing removal proceedings).

[19] Trump announced his plan in February 2017 to round up all undocumented immigrants, not only criminal noncitizens. The increase in noncitizens in the court system will raise wait times for removal proceedings because the docket will be full of both criminal and noncriminal noncitizens. Michael D. Shear & Ron Nixon, New Trump Deportation Rules Allows Far more Expulsions, N.Y. Times (Feb. 21, 2017), https://www.nytimes.com/2017/02/21/us/politics/dhs-immigration-trump.html?_r=0.

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