Introduction
On May 25, 2020, U.S. Immigration and Customs Enforcement (ICE) announced the death of Santiago Baten-Oxlaj, a thirty-four-year-old man who contracted COVID-19 while detained in the Stewart Detention Center in Lumpkin, Georgia.1 He was the first person in Stewart and at least the second person nationwide to die from the disease while in ICE custody.2 Watchdog groups had long been concerned about conditions at Stewart, a private immigration prison accused of medical neglect, abuse, and unsanitary living conditions.3 As COVID-19 began to spread rapidly through the facility, immigrants held in Stewart and a neighboring Georgia immigration prison filed suit against ICE, arguing that their conditions of confinement violated substantive due process and the Agency’s own rules governing the prevention of communicable disease in detention.4 In A.S.M. v. Warden, Stewart County Detention Center,5 a federal district court denied their claims.6 The court held that ICE had done enough to meet constitutional requirements and that its detention standards — which direct the Agency to do more — were not enforceable.7 Following the decision in A.S.M., the disease continued to spread rapidly through the facility and three more people detained at Stewart — Cipriano Chavez-Alvarez, sixty-one; Jose Guillen-Vega, seventy; and Felipe Montes, fifty-seven — died from COVID-19 complications.8
The COVID-19 pandemic resurfaced a longstanding question: What law governs the conditions of confinement within the U.S. immigration detention system? The question is of significant importance. The United States operates the largest immigration detention system in the world, confining nearly 300,000 people each year.9 Congress has authorized federal immigration officials to detain any immigrant10 pending their possible exclusion or deportation (collectively described as “removal”) from the country.11 Procedural avenues for seeking release from immigration detention have narrowed over time.12 As a result, immigrants may face the prospect of weeks, months, or years of detention before their cases are resolved either through a grant of permission to remain in the United States or deportation.13 While detained, immigrants rely on the government and government contractors to provide their necessary medical care, food, and safety. Yet the U.S. immigration detention system has become notorious for unsanitary conditions, inedible food, excessive use of force, racialized abuse, medical neglect, and preventable death.14 The law — or lawlessness — governing the rights of people within the immigration detention system therefore has serious, even life-or-death consequences.
The answer to this question ostensibly rests within various sources of law, including the U.S. Constitution. The government has an affirmative constitutional duty to meet the “basic human needs” of the people it confines, including the provision of “food, clothing, shelter, medical care, and reasonable safety.”15 The government is prohibited from exhibiting “deliberate indifference to [a person’s] serious medical needs” in confinement.16 The Supreme Court has categorized immigration detention as a form of civil detention.17 The government is prohibited from subjecting individuals in civil detention to punitive conditions of confinement, that is, conditions that are “express[ly] inten[ded] to punish,” not rationally related to a legitimate government objective, or excessive to that objective.18
These constitutional rights are further supplemented by statutory and administrative law. The Immigration and Nationality Act19 (INA) requires federal immigration officials to “arrange for appropriate places of detention”20 and to work with states and localities to ensure “acceptable conditions of confinement” where jail settings are used.21 After intense legislative scrutiny of detention conditions, the U.S. Immigration and Naturalization Service (INS) — the predecessor agency to ICE22 — began working on a set of detention standards in 1980 to manage its growing network of contract facilities.23 Released, amended, and reissued in 1998, 2000, 2008, 2011, 2016, and 2019,24 the detention standards remain the Agency’s primary written set of rules regulating the conditions of confinement in the U.S. immigration detention system and serve as the basis of a congressionally mandated inspection system.25
This array of constitutional, statutory, and administrative law is the main substantive law of immigration detention.26 Yet when detained immigrants seek to enforce their rights under this body of law, the law is often unequal to the task. During the COVID-19 pandemic, many federal district courts applied constitutional, statutory, and administrative law principles to release medically vulnerable immigrants or order other remedies to protect the health and welfare of people in immigration detention.27 But some federal district courts, like the court in A.S.M., rejected detained immigrants’ claims in light of the interests of the legislative and executive branches in maintaining their detention system.28 Two of the most significant district court victories for detained immigrants were overturned by federal appellate courts based in part on this rationale.
One such case is Hope v. Warden York County Prison,29 where the Third Circuit overturned a district court’s decisions that released at-risk immigrants from facilities in Pennsylvania.30 Similar framing characterized the Ninth Circuit’s majority decision in Fraihat v. U.S. Immigration & Customs Enforcement,31 which overturned a nationwide preliminary injunction ordering ICE to engage in individualized custody reviews for immigrants with certain disabilities or at high risk of serious medical complications or death from COVID-19.32 The Ninth Circuit rejected the lower court’s deliberate indifference analysis, faulting the court for its lack of deference to “the Executive Branch’s preeminent role in managing immigration detention facilities and its greater institutional competence in this area.”33 It emphasized the government’s legitimate interest in immigration detention and rejected the contention that conditions had become unconstitutionally punitive.34 The court further concluded that the petitioners’ claim of deliberate indifference was unlikely to succeed on the merits, emphasizing ICE’s issuance of “mandatory” guidance to its detention facilities to address COVID-19.35
Immigrants’ attempts to enforce compliance with the “mandatory” detention standards have also been fraught. The analysis in A.S.M. exemplifies the broader trend. After rejecting immigrants’ substantive due process claims for the same reasons that were later adopted by the Third and Ninth Circuits, the court in A.S.M. also rejected the petitioners’ claim that, at minimum, ICE must be required to comply with its standards.36 For this claim, the petitioners relied on the doctrine applied in United States ex rel. Accardi v. Shaughnessy,37 in which the Supreme Court invalidated a deportation order based on the Agency’s failure to follow its own rules.38 The district court rejected the Accardi claim, concluding that the Accardi doctrine applied only to agency procedural rules promulgated with the force and effect of law.39 The court characterized the Agency’s adoption of standards as purely voluntary and unenforceable, in part because there was no identified “source of statutory authority that would even permit such agency rule-making delegation under these circumstances.”40
This recent line of cases raises a number of serious questions. If constitutional protections against punitive detention rise and fall on the courts’ perception of the government’s legitimate interest in detention, what meaningful limits on the conditions of confinement apply? If agency detention standards both are unenforceable and immunize the agency against claims of deliberate indifference, what law actually protects the rights and interests of people in detention? The answer is either nothing — a steady state of relative lawlessness in immigration detention — or that these courts are approaching the doctrinal inquiries incorrectly.
This Article explores the latter possibility as a potential salve for the former — that some courts have faltered in their approach to conditions of confinement claims in the immigration detention context. The analyses in cases like Hope, Fraihat, and A.S.M. suggest that part of the problem stems from a shared feature of immigration, administrative, and prison law: the judiciary’s expansive deference to one or both political branches of government. In immigration law, the judiciary defers to the political branches’ “plenary power,”41 declining to scrutinize “the wisdom, the policy or the justice of the measures” by which noncitizens are excluded or expelled from the United States.42 In administrative law, the judiciary defers to agency interpretations of ambiguous regulations.43 In prison law, the judiciary employs “penal power,”44 “canons of evasion,”45 and “dispositional favoritism”46 to defer to prison operators, observing that “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.”47 It is therefore unsurprising that the combination of immigration, administrative, and prison law — the law of immigration detention — also relies on significant deference to the political branches, which in turn undermines meaningful judicial constraints on the conditions of confinement.
Scholars have rigorously critiqued the role of deference in the underenforcement of rights for people in confinement.48 I have previously argued that deference to the Executive should have limited application in habeas challenges to the government’s authority to detain.49 Heavy deference to the political branches improperly amplifies the interests of the prosecutor and jailer over the interests of the person detained.50 Eliminating deference can open space for greater enforcement of constitutional, statutory, and regulatory rights through liberty-enhancing norms.51 The demise of Chevron52 only buttresses these efforts for more searching judicial review.
This Article examines the issue of deference from a related angle: whether the courts have properly assessed the will of the political branches — particularly Congress — in the rush to defer. A closer look at legislative and regulatory history demonstrates that federal courts have largely conflated Congress’s interests in exclusion and deportation with its interests in detention. The stock story is one of a legislative body eager to detain, broadly authorizing federal immigration officials to operationalize a detention system in any manner they see fit in order to meet the demands of legislative and executive exclusion and deportation priorities. This view of congressional intent has in turn colored courts’ perspectives on executive action, or inaction, in managing detention conditions. Agency regulation of immigration detention operates in an informal sphere, manifesting primarily as standards, guidance, and other informal rules. Some courts have therefore viewed agency regulation of detention as gratuitous self-regulation, neither required by law nor enforceable, even when violations of these rules threaten the life and liberty of those detained. Because these courts believe that nothing requires the agency to act, any action is laudable and any inaction is free from scrutiny.
These judicial perspectives on the will of the political branches are incorrect. The stock story misses two important aspects of the legislative and regulatory history of immigration detention. First is the legislative will to ensure civil — that is, humane and nonpunitive — conditions of immigration detention. Congress initially federalized immigration detention to standardize and improve the conditions of such detention and subsequently required the Executive to ensure “appropriate places of detention”53 and “acceptable conditions of confinement.”54 Second is legislative distrust of agency management of detention conditions. Initially, federal immigration officials cooperatively engaged in the regulation of detention conditions.55 Over time, however, reports of agency malfeasance and neglect prompted greater oversight from Congress.56 Congressional inquiries and directives drove the Agency to adopt its modern-day detention standards and compliance mechanisms.57 Most recently, congressional distrust of agency detention management prompted the creation of an independent office of investigation and compliance.58 With this Article, I introduce the term “civil detention interest” to describe the two intertwined threads of this more nuanced account.
The civil detention interest is relevant to the substantive rights of detained immigrants in several important respects, three of which are the focus of this Article. First, the civil detention interest informs how courts should treat substantive due process challenges to immigration detention. By separating Congress’s interest in regulating conditions from its interest in expanding detention, courts may reevaluate the proper approach to substantive due process claims in the immigration context. Courts may better assess whether a particular condition serves or is excessive to a legitimate nonpunitive governmental purpose, whether the Agency’s issuance of informal rules should defeat a deliberate indifference claim, and whether deliberate indifference is the proper inquiry at all. A more fulsome consideration of the civil detention interest should also lead courts to question the application of deference to the Agency on issues requiring detention management expertise. Second, the civil detention interest informs how courts should construe provisions within the INA governing “appropriate places of detention”59 and the “acceptable conditions of confinement.”60 Many courts have either ignored these provisions or construed them as expanding executive authority to decide where to detain individuals and in what conditions.61 By contrast, the legislative and regulatory history suggests that these provisions were intended to constrain such authority and direct the Agency to protect the rights of people in detention. Third, the civil detention interest informs how courts should assess claims seeking to enforce informal agency rules governing detention conditions. Agency action stems in part from longstanding congressional oversight concerning the rights and interests of detained people, and thus enforcement of detention standards fits well within the Accardi doctrine.62 The Agency should be bound by its detention standards absent a conflict with more rigorous statutory or constitutional requirements.
By emphasizing the interests of the political branches in regulating the conditions of immigration detention, I do not suggest that Congress or the Agency has taken a benign approach to immigration detention, or that courts have properly categorized the purpose of immigration detention as civil. As scholars have argued, the expansion of mandatory detention in the 1980s and 1990s and its ties to criminal legal consequences suggest that the federal government uses immigration detention for punitive purposes of retribution and deterrence.63 So long as courts continue to categorize immigration detention as a form of civil confinement, however, they must consider the full range of interests at stake. This Article challenges courts to take seriously their role in identifying and enforcing the substantive rights of immigrants in detention in light of the doctrinal frameworks that courts have created and continue to maintain.
This Article proceeds in three parts. Part I describes how federal courts have interpreted potential sources of substantive immigration detention law and why some have produced, through their decisions, lawlessness for immigrants facing poor conditions of confinement.64 I focus on three areas: substantive due process, statutory immigration law interpretation, and the enforcement of agency detention standards. In each of these realms, a growing number of courts have rejected detained immigrants’ claims based on a perceived conflict with the political branches’ interest in unfettered detention authority.
Part II challenges this judicial account by unearthing the history of congressional and administrative action to address the conditions of civil immigration confinement, unwinding the political branches’ civil detention interest from their broader expansion of detention overall. I focus on congressional and executive action to regulate the conditions of immigration confinement during three periods — the federalization of immigration detention at the turn of the twentieth century, the expansion of detention during the internal security era, and the entrenchment of detention during the modern era. I argue that the political branches have expressed significant concern over the conditions of immigration confinement, with Congress directing federal immigration authorities to ensure civil conditions in the face of perceived agency mismanagement.
Part III then considers the doctrinal implications of the civil detention interest, returning to the substantive due process jurisprudence, statutory interpretation questions, and enforcement of agency detention standards discussed in Part I. Courts have placed undue weight on the federal government’s interest in detention when addressing whether conditions are unconstitutionally punitive and whether jailers demonstrate deliberate indifference. Courts have either ignored or misconstrued statutory provisions that direct administrative officials to ensure appropriate conditions of confinement. Courts’ reluctance to require the Agency to comply with detention standards is misplaced, as the enforcement of these standards implicates the concerns at the heart of the Accardi doctrine and aligns with congressional intent. A shift in judicial approach to conditions claims — one that more fully considers the complex interests of the political branches in regulating the conditions of detention — should result in more robust enforcement of substantive rights for detained immigrants. I conclude, however, by taking seriously the proposition that some courts will continue to fail to enforce the substantive law governing the conditions of immigration detention. This failure lends weight to critiques of the immigration detention system as a whole.
Continue Reading in the Full PDF
* Professor of Clinical Law, New York University School of Law. I am grateful to Sabrineh
Ardalan, Eunice Cho, Sharon Dolovich, Mark Fleming, Alexis Karteron, Emma Kaufman, Nancy
Morawetz, John Peng, Jessica Rofé, and participants of the Immigration Law Teachers and Scholars Workshop and the Law and Society Association Global Meeting for their thoughtful feedback. I thank my wonderful research assistants Zaynab Said, Jacob Park, Kayla Yoon, and Sam Karnes.