As the Trump administration continues to expand immigration detention to unprecedented levels, and (with the help of the Supreme Court) continues to restrict which immigrants can post bond to get out of detention while their deportation cases are pending, a group of congressional Democrats — led in the Senate by presidential candidate Sen. Cory Booker (D-NJ) — is proposing a bill that would throw the detention machine in reverse.
The bill, the Dignity for Detained Immigrants Act, was first introduced in the 2017-’18 Congress (with Washington Reps. Pramila Jayapal and Adam Smith co-sponsoring it in the House and Booker introducing the Senate version).
It’s being reintroduced this week as a response to an April ruling from Attorney General William Barr that prohibited asylum seekers who came to the US without papers from posting bond. If Barr’s ruling goes into effect as scheduled over the summer, single adult asylum seekers will be at the mercy of Immigration and Customs Enforcement (ICE) to decide whether to release them on parole or keep them in detention for weeks or months.
Democrats’ bill would reverse not just Barr’s ruling but the entire system on which it was built: the 20-plus-year expansion of an immigration detention system that has turned detention into the default state for immigrants who’ve been arrested by ICE or apprehended by border agents.
It’s an extremely ambitious bill that would enable thousands more immigrants a month to seek release in the short term, and radically restrict detention capacity over the course of a few years. It’s almost certainly not going to pass in its current form. Arguably, given the number of hearings it would add to an already overloaded immigration court system, it wouldn’t even work without a much bigger liberalization of the immigration system.
But it’s a reminder that some congressional Democrats — not to mention a presidential candidate in Booker — are looking at the interplay between the Supreme Court and the Trump administration that’s allowed mandatory detention to flourish, and are interested in taking back a role for Congress.
Reversing Barr’s decision on bond — and the mandatory detention system it’s built on
The last time Congress passed a major immigration bill — the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which radically expanded interior immigration enforcement and restricted legalization opportunities — it mandated that certain types of immigrants be held in detention until their deportation cases were resolved. Immigrants who’d been convicted of certain crimes, for example, were subject to mandatory detention even after serving criminal sentences.
Other immigrants — including people apprehended entering the US without papers who’d passed asylum screenings — were subject to detention by default, but ICE had the discretion to release them on parole. Federal regulations went further, creating a way for immigrants ICE didn’t choose to release to seek a “periodic redetermination” of their detention — a bond hearing — in front of an immigration judge if their detention was stretching out for months or years.
Since 1996, the federal government’s capacity to arrest and detain immigrants has grown exponentially. And under President Trump, ICE considers detention the default state for immigrants once apprehended — and is more willing to overspend its budget to keep more people in detention than release immigrants to stay within budget. (The major exception is for families arriving in the US, who are coming in unprecedented numbers, and whom the federal government is generally releasing into the US after quick processing in order to comply with a court ruling that limits the time children can spend in immigration detention.)
Earlier this month, Barr ruled that arriving asylum seekers that ICE chose to detain could no longer seek bond hearings.
His ruling was built on a recent Supreme Court case, Jennings v. Rodriguez, which held that the Immigration and Nationality Act didn’t require bond hearings for immigrants subject to mandatory detention — no matter how long that detention was dragging on. And in a related case earlier this year, the Court held that immigrants who were eligible for mandatory detention because of their criminal histories must be detained even if they were arrested by ICE years or decades after getting released from prison.
The Booker bill would reverse all of this — not just the bond changes but the underlying system of mandatory detention supplemented by ICE agent discretion to arrest and detain.
Under the bill, most immigrants couldn’t even be arrested by ICE or Customs and Border Protection without a warrant signed by an immigration judge (which isn’t required now, as the whole deportation system is technically civil rather than criminal). That would radically restrict ICE’s ability to make “collateral” arrests of immigrants it comes across, a main reason ICE raids cause so much fear within communities.
Border agents would be allowed to apprehend immigrants entering the United States without a warrant, but they’d have to show probable cause that the immigrant was deportable at a hearing within 48 hours of the apprehension.
Congress would no longer mandate categorical detention for any type of immigrant. Instead, ICE would select in each case whether an immigrant should be released (and monitored via an alternative program) or detained — and if it picked the latter, an immigrant could challenge the decision. An immigration judge would have to hear the challenge within the week, and the judge’s presumption would be in favor of releasing the immigrant; ICE would have to show by clear and convincing evidence that there would be a safety risk, or risk of absconding, if the immigrant weren’t detained.
That standard would be even higher for vulnerable immigrants, including asylum seekers and crime victims. And caregivers of children — including close relatives who aren’t parents, who are currently liable to be separated from the children they travel with — would be all but barred from getting detained.
Essentially, bond would be made available to immigrants in many more cases — and it would no longer cost a minimum of $2,000. The bill would require the immigration judge to assess an immigrant’s ability to pay and avoid incurring financial hardship when setting bond. (According to a Washington Post investigation, ICE is currently holding $204 million in immigrants’ bonds — money those immigrants may never see again.)
A progressive wish list to end detention
The changes to the detention and bond process would be radical: Thousands of immigrants a month would be eligible to seek release.
The bill, if enacted, would push the already overstretched immigration system to a breaking point. The thousands of new cases a month would be added to the overloaded docket of immigration judges. So would the 48-hour probable cause hearings for border crossers — of whom nearly 100,000 crossed in March 2019 alone.
It is, safe to say, not a bill that Congress could pass easily. And it’s not designed to. It’s showing a path for Congress to dismantle the immigration detention system as it’s built up for the past 20 years — a pretty aggressive proposition for a presidential candidate like Booker, in a field where major candidates have barely touched on immigration enforcement. (To date, only Julián Castro has released a full immigration proposal.)
The bill would dismantle private immigration detention contracting, which makes up the overwhelming majority of detention. It would stop the government from signing any new detention contracts and sunset privately operated facilities within five years. Essentially, it would force the government to either totally rethink immigration detention or radically shrink it.
Some elements of the bill, including those newly added in the 2019 version, are less ambitious oversight-and-reporting provisions. After the deaths of two children in Customs and Border Protection custody in December, for example, the bill would require DHS to notify Congress within a week of any death in custody and issue an investigative report within 60 days. And it would require DHS to provide more information to Congress about how long immigrants are spending in custody while they wait. (More controversially, but probably in line with the stance of many congressional Democrats, would be a legal prohibition of the detention of any child under 18 in ICE custody — an attempt to preempt the Trump administration’s efforts to expand family detention by superseding the Flores settlement.)
The bond provisions fit somewhere in the middle. On their own, they’d preserve the current status quo for adult asylum seekers: stopping a policy change with far-reaching impact that the Trump administration has set in motion. In the context of the bill, though, they’re challenging the trend that has defined federal immigration policy for the past quarter-century: Congress set up an immigration crackdown with its 1996 law, then sat back and watched as the executive branch built a more powerful immigration enforcement machine than Congress ever imagined.