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Excerpted From: Eisha Jain, Jailhouse Immigration Screening, 70 Duke Law Journal 1703 (May, 2021) (318 Footnotes) (Full Document)

EishaJainIn recent years, interior immigration enforcement in the United States has undergone a radical transformation. Today, U.S. Immigration and Customs Enforcement (“ICE”) picks up far more people from prisons and jails than from all other settings combined. Since 2013, every arrested individual in the United States has been subject to automatic immigration screening. Through the Secure Communities program, immigration enforcement officials compare the fingerprints of every arrested individual against various Department of Homeland Security (“DHS”) databases to check for removability. Secure Communities is arguably the most important immigration legacy of the Obama administration. It has spawned an enormous bureaucracy devoted to screening immigration status within the U.S. jailhouse.

The stated aim of jailhouse screening is to target immigration enforcement in accordance with high-level federal removal priorities. As Professors Adam Cox and Cristina Rodríguez detail, the President largely sets the agenda for removals from within the United States. The Immigration and Nationality Act (“INA”) renders a massive population--approximately eleven million noncitizens--“deportable at the option of the President.” At the same time, DHS removes less than 5 percent of the total undocumented population in any given year. The government presents jailhouse screening as a “simple and common-sense way to carry out ICE's enforcement priorities.” “[F]elons, not families,” is how President Barack Obama described those priorities. Jailhouse screening is thought to give immigration enforcement officials a way to gather information about arrested individuals and to use that information to implement removals in accordance with federal priorities. For instance, federal immigration officials can concentrate on noncitizens who pose “public safety and national security threats.” This approach, in turn, has the effect of shielding long-term noncitizens who do not fall within removal priorities from deportation.

This Article shows how a program developed with the stated aim of targeting immigration enforcement has massively expanded its reach, magnified the socioracial disparities underlying criminal arrests, and ultimately created new systemic risks of removing longtime residents. Secure Communities has generated debates regarding the scope of executive power and about immigration federalism, particularly through “sanctuary” or noncooperation policies. But thus far, the legal institution of the jailhouse itself has received relatively little attention. This Article argues that we cannot understand the work that immigration screening is doing without recognizing its structural impact within the jailhouse itself. Jailhouse screening is not functioning as a targeted model of immigration enforcement. Rather, it is functioning as a punitive model. It subjects jailed individuals to extended carceral treatment within the criminal justice system because of suspected civil immigration violations.

Conceptualizing jailhouse immigration screening as targeted misapprehends how the jailhouse expands the reach of immigration law. Before the rollout of Secure Communities, most residents would encounter immigration officials only if they traveled overseas. That world is gone. Today, one out of every three adults will be arrested by the age of twenty-three; the ratio is higher for Black and Latino men. Immigration screening necessarily attaches to the engine of misdemeanor arrests, which constitute the vast majority of arrests in the United States every year. Misdemeanors already give police enormous discretion to target common behavior that is too often detached from principles of moral culpability. By relying on criminal arrest, immigration enforcement necessarily absorbs the selection biases underlying domestic policing decisions.

The targeted model obscures how jailhouse immigration screening magnifies the impact of a low-level criminal arrest. Contrary to the government's assumption that immigration enforcement occurs “behind the scenes” of an arrest, jailhouse immigration screening has an immediate impact on the criminal justice process. It leads to the denial of bail or harsher plea proffers. This approach undermines the significance of a seminal 1896 decision, Wong Wing v. United States, which held that noncitizens cannot be punished for civil immigration violations. Wong Wing involved formal punishment; the defendants had been ordered removed and sentenced to two months of hard labor before the deportation took place. The U.S. Supreme Court upheld the deportation but dismissed the prison sentence because it had been imposed without due process. The Court held that if the government sought to punish noncitizens, it could not do so through civil legal proceedings--it must instead do so through criminal law and provide defendants with the heightened protections that accompany criminal sanctions. The opinion said nothing about pretrial detention, however. Jailhouse immigration screening exploits this gap; it permits jailed individuals to be subject to longer pretrial detention for suspected civil immigration violations. This approach has an effect that is akin to imposing criminal punishment. But because pretrial detention is not considered formal punishment, it is not governed by Wong Wing.

Even as immigration screening has moved to the jailhouse, it has not adopted procedural protections meant to guard against government overreach in the criminal law. Secure Communities operates by crosschecking fingerprints taken as part of the criminal booking process with various DHS fingerprint databases. An immigration officer reviews the database comparisons and seeks to quickly send an immigration detainer to the local jail. The detainer requests that the jail hold the arrested individual for two extra days so that immigration officials can assume custody. No judicial process accompanies the issuance of immigration detainers. The process for conducting immigration screening is systemically detached from probable cause determinations that any given individual is removable. There is no national database of citizens or noncitizens, and the government's removal process rests on databases that a federal court determined “often contain incomplete data, significant errors, or were not designed to provide information that would be used to determine a person's removability.”

Jailhouse screening magnifies the risk of removing residents from within the United States without adequate care for accuracy or procedural fairness, and it magnifies the selection biases of domestic policing. This approach undercuts immigration enforcement objectives. Immigration enforcement decisions build the polity in a number of ways, such as through decisions about unifying families, building a workforce, promoting assimilation, or providing humanitarian relief. Jailhouse immigration screening is thought to channel enforcement discretion in a way that is more rule bound. But in effect, it magnifies the potential for government overreach in both immigration and criminal law. It obscures how domestic policing decisions set the agenda for immigration regulation and how immigration decisions affect the criminal justice process.

If jailhouse immigration screening magnifies the length of carceral treatment after a low-level arrest and creates new risks of detaining and expelling those who are not removal priorities, then it cannot be justified on the grounds of targeting enforcement. Immigration enforcement should uncouple from the criminal arrest process altogether. Barring that approach, jailhouse screening requires greater front-end procedural protections akin to those of criminal law. One particularly important change is to hold the government to its burden of proof in establishing probable cause for a detainer. Consistent with the Fourth Amendment, immigration detainer decisions should be subject to neutral magistrate review.

The balance of this Article proceeds as follows: Part I explains the rise of jailhouse immigration screening and how it came to be viewed as a targeted approach to immigration enforcement. Part II focuses on the screening process within the jailhouse and explains how jailhouse screening creates extended carceral treatment and due process violations. Part III argues that jailhouse screening elevates carceral interests over immigration interests and resuscitates what is experienced as a punitive approach to immigration enforcement. This approach undermines immigration law objectives. Part IV argues for uncoupling immigration screening from the jailhouse and for establishing greater front-end procedural protections.

[. . .]

This Article has argued that in order to recognize the reach of immigration enforcement, it is essential to focus on how the legal institution of the jailhouse affects immigration regulation. The rationale for jailhouse immigration screening is to target enforcement on noncitizens who fall within federal removal priorities. But in practice, jailhouse screening creates unjustified detention within the criminal legal system based on suspected civil immigration violations, imposes enormous hidden costs on racial minorities most likely to be subject to low-level criminal arrest, and ultimately creates systemic risks of removal without adequate regard to legal, procedural, or equitable considerations. Given the sheer size of the criminal justice system, jailhouse immigration screening massively expands the reach of immigration enforcement and creates new risks that racially biased domestic arrests will lead to removal. This approach should call into question the role that the criminal justice system plays in determining who belongs in the United States. At a time when there is widespread agreement that the criminal justice system is too big and that it disproportionately controls and punishes racial minorities, it is time to reconsider whether immigration screening should take place in the jailhouse.

Assistant Professor, University of North Carolina School of Law.

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