Mandatory detention for criminal convictions: The reproduction of racial inequality throughU.S.immigration law

Abstract

Since the late 1980s, immigrants convicted of certain criminal offenses have been subject to mandatory detention during their deportation proceedings. Due to court backlog and complicated cases, noncitizens mandatorily detained in this way can be held for years at a time, without any legal right to a bail hearing. While political rhetoric and policy aims of the past three decades have painted so-called "criminal aliens" as a highly dangerous group from whom the American public needs protecting, the criminal convictions that invoke mandatory detention and likely deportation are actually quite diverse, in large part due to the expansion of the "aggravated felony" ground of deportation to include a wide variety of less serious crimes. Drawing from 40 interviews with lawyers and other legal actors in New York City's detained immigration court from 2017 to 2018, this article explores the effects of aggravated felony-based mandatory detention. I argue that in doubly punishing immigrants who have already served time for criminal convictions, the immigration system funnels criminalized noncitizens-particularly those from poor Black and Latinx communitiestoward deportation, perpetuating inequality and upholding existing racial hierarchies. | INTRODUCTIONWith a stated focus of deterring irregular immigration and removing "criminal aliens," the United States immigration system has become increasingly punitive over the past 30 years. Today, upwards of 300,000 immigrants facing deportation are detained in the United States

Mitigating the Violence of Mass Immigration Detention Through Community-Based Case Management

“…It is worth noting that the aggravated felony provision is not a term borrowed from criminal legal doctrine, despite its resemblance to terminology indicating a serious crime. In fact, prior to 1988, it did not officially exist (Tosh, 2022). The 1986 ADAA expanded deportations related to drug offenses involving any federally controlled substance, while the 1988 ADAA created the term "aggravated felony" to identify the few noncitizens convicted of murder and illicit trafficking in drugs or firearms for apprehension, incarceration, and removal (Macías-Rojas, 2016).…”

“…A study analyzing immigration court data between 2008 and 2018 (N=1,829,049) observed that 96% of noncitizens who had legal assistance appeared for all of their court hearings (Eagly & Shafer, 2020). However, once someone is in immigration detention, access to legal aid is substantially inhibited (Markowitz, 2009;Marouf, 2017) and legal representation is not provided (Tosh, 2022). Very few legal resources are readily available to noncitizens facing deportation unless they have the financial capacity to hire a lawyer or are fortunate enough to procure pro bono services which are typically scarce and in high demand (IRC, 2021).…”

“…Primarily, policy advocates must focus on amending the INA to eliminate the aggravated felony construct and its companion, the mandatory detention and deportation provision. These laws systematically punish noncitizens, especially Black and Latinx immigrants from lower socioeconomic backgrounds, by funneling them into detention and deportation and reproducing structural inequalities (Tosh, 2022). Advocates can pursue revising the legal meaning of "custody" to encompass humane alternatives to detention programs (Schriro, 2021).…”