Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody”

Abstract

Immigration detention in the United States is a crisis that needs immediate attention. U.S. immigration detention facilities hold a staggering number of persons. Widely believed to have the largest immigration detention population in the world, the United States detained approximately 478,000 foreign nationals in Fiscal Year 2012. U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement, boasts that the figure is “an all-time high.” In some ways, these numbers are unsurprising, considering that the United States incarcerates approximately one in every one hundred adults within its borders—a rate five to ten times higher than any other Westernized country. An immigration law, known as the mandatory detention statute, is partially to blame for this recordbreaking immigration detention population. Under this law, facilities may hold noncitizens without providing them an opportunity to ask for release.