Mandatory Immigration Detention for U.S. Crimes: The Noncitizen Presumption of Dangerousness

Abstract

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes—if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a ‘noncitizen presumption’ of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with the risk posed by noncitizens increasingly seen as little different, at least those treated with dignity. Moreover, this ‘noncitizen presumption’ of danger contravenes empirical evidence and overdetains the nondangerous even more so than criminal pretrial detention practices, themselves under reform. Rather, the ‘noncitizen presumption’ rests on stereotypes of dangerous, recidivist ‘criminal aliens’—which, because of a noncitizen’s inherently speculative past, particularly bolster the tendency of preventive detention regimes to choose detention. I preliminarily offer two theories for the ‘noncitizen presumption,’ both reflecting expressive, symbolic characteristics of immigration detention law—government overcompensation for public ‘blaming the gatekeeper’ and, complementarily, a social construct of noncitizens as invitees, derived from property law.