Mandatory Detention at the Border

March 2, 2017
Guest Post

by Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law

Last week DHS issued new guidelines implementing President Trump’s Executive Order on Border Security, announcing a policy of mandatory detention for noncitizens apprehended at the border.

When a noncitizen arriving at the border is charged with removability, Section 212(d)(5) of the Immigration and Nationality Act grants immigration officials discretion to release her on parole pending the outcome of removal proceedings. For decades, officials considered factors such as the individual’s age, health, family ties in the United States and the hardship that detention would cause, in determining whether detention was warranted. Last year, DHS reported detaining only 352,882 of the 805,071 noncitizens placed in removal proceedings last year.       

Under the new guidelines, discretionary grants of parole are prohibited unless the Deputy Director of ICE or the Deputy Commissioner of CBP provides written authorization for the individual’s release; individuals who demonstrate a credible fear of persecution for asylum purposes remain eligible for discretionary parole without such written authorization. The guidelines explicitly preclude grants of parole on a categorical basis, for example, to all children, or pregnant women, or individuals over the age of 80. Moreover, they appear to preclude consideration of alternatives to detention, such as electronic monitoring.     

Last year, DHS apprehended 690,637 noncitizens at or between ports of entry. This figure includes 415,816 individuals, including 59,757 unaccompanied children and 77,857 family units, apprehended by U.S. Border Patrol, plus an additional 274,821 individuals denied entry by U.S. Customs and Border Protection’s Office of Field Operations. Some of these individuals arriving through the southern border may be repatriated immediately to Mexico without a hearing, assuming the Mexican government agrees to accept them. Some will be able to establish a credible fear of persecution and thus become eligible for discretionary parole. Under the new guidelines, however, virtually all other noncitizens apprehended will be detained.

Abysmal conditions at our nation’s immigrant detention facilities, including those for children and families, have been well-documented; it is not clear how an already over-burdened system will cope with the spike in immigrant detention mandated by the new guidelines. Nor is it clear how it will be funded, given that the system’s current capacity of 34,000 detention beds already costs $435.4 million per year, with adult beds costing an average of $123.54 per day and individuals housed in family units costing an average of $342.73 per day.

The new guidelines appear to acknowledge these constraints, providing that the new policy will not become effective until detention capabilities are expanded. This expansion will almost certainly involve the award of new contracts to private prison corporations, notwithstanding documented weaknesses in their oversight and management. The new guidelines offer a boon to the for-profit prison industry, at the expense of vulnerable migrants.