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Justice Black warned in 1952 about the dangers of giving immigration police and prosecutors the authority to jail human beings with very little involvement by the judiciary. Today’s immigration detention machine illustrates Justice Black’s fears: U.S. Department of Homeland Security (“DHS”) agents have both arrested 182,869 people in a single year and decided whether those individuals will be released or remain incarcerated for the remainder of their removal proceedings. For those entitled to immigration judge review, the judge works for the Department of Justice (“DOJ”) under the supervision of the Attorney General, the nation’s top prosecutor. Immigration judges’ lack of independence has long been a subject of critique, leading some to refer to themselves as “‘U.S. imitation judges.’” In sum, when the DHS police arrest a person, only a prosecutor reviews that decision. Most of these crucial decisions about a person’s liberty occur without any review by an Article III judge.

In this Article, I propose that Congress, in recognition that immigration detention is punishment, strip imitation judges of their authority to review decisions about physical liberty. Such decisions should only be entrusted to a federal magistrate judge, with review by an Article III judge. The procedures are already in place elsewhere; Congress need look no further than the Bail Reform Act, which applies when a person is held while awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. I argue that these decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit the judiciary’s role. Yet such review has happened for only a subset of detainees—those who are savvy enough to file a habeas corpus petition and lucky enough (or rich enough) to have habeas counsel, and those for whom the federal court reaches the merits of the custody challenge before the deportation case concludes (which moots the petition). The work of these lower federal courts has been laudable, but a better solution that reaches every immigration detainee is necessary.

This Article merges two themes from the existing scholarship: (1) immigration judges’ lack of independence and (2) lack of procedural rights for immigration detainees. Scholars, lawyers, judges, and congressional committees have been recommending a more independent immigration adjudication system for decades. My proposal advocates for a change to a subset of immigration decisions, those involving physical custody. Detention is different from other immigration decisions—scholars have argued that it is punishment. Thus, imitation judges should have no role in these decisions. Nor does the immigration judge have any particular expertise in determining danger and flight risk; rather, magistrate judges make these decisions for criminal defendants on a daily basis. I go further than others by proposing that the adjudicator not be an administrative law judge or even an Article I court, but a magistrate judge, whose decisions are subject to review by an Article III judge. I and others have advocated for stronger procedural protections in immigration detention decisions, such as a government-borne burden of proof, a prompt probable cause hearing, court-appointed counsel, and the requirement that judges determine alternatives to detention and a detainee’s ability to pay; with these procedures, immigration bond hearings can more closely track criminal pretrial detention hearings. My proposal here differs in that it physically moves the procedures to an entirely different court. Rather than importing procedural protections piecemeal into immigration court, with oversight by federal judges through habeas corpus, I propose a system where all decisions regarding physical custody are removed from immigration court and placed in federal district court.


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7 Sep 2022
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  • Subject
    • Courts

    • Criminal Law

    • Criminal Procedure

    • Immigration Law

    • Judges

  • Journal title
    • Maryland Law Review

  • Volume
    • 80

  • Issue
    • 4

  • Pagination
    • 1076-1137

  • Date submitted

    7 September 2022