New Research at the Intersection of Detention and Adjudication

Guest post by Ingrid Eagly, professor at UCLA School of Law and Faculty Director of the UCLA Law Criminal Justice Program. Eagly’s research explores the intertwining of migration and criminal control in the United States context. This is the second post of Border Criminologies’ themed series on 'The Changing Landscapes of Immigration Detention' organised by Ana Ballesteros-Pena and Cristina Fernández-Bessa.

In September of 2022, Ana Ballesteros Pena and Cristina Fernández Bessa hosted a groundbreaking International Workshop, “Changing Landscapes of Immigration Detention,” at the Faculty of Law at University of A Coruña, Spain. The conference brought together an impressive interdisciplinary group of researchers for a cross-national discussion of the rapid rise in migrant detention as a tool of social control around the globe. In the diverse panel topics, common themes emerged, including the heavily racialized nature of migrant detention and the strong ties between existing penal regimes and emergent detention practices. Despite the recent growth in scholarly inquiry in this area, detention remains understudied, and the papers shared at the Workshop charted essential new territory for current and future research.

As Cristina Fernández Bessa and José A. Brandariz have recently underscored, prisons and detention facilities ostensibly have distinct “legal and operational rationales.” At the same time, however, criminal and migrant prisons are “closely intertwined,” such that immigration detention can be understood as an extension of the carceral state.

The distinct national case studies shared at the conference deepened our understanding of how migrant detention operates across multiple contexts, and in ways often indistinguishable from imprisonment. For example, investigations in Greece by Andriani Fili and in Australia by Lorena Rivas documented the violence and poor conditions inflicted on vulnerable detainees, as well as the related challenges faced by civil society organizations in documenting and challenging what is happening inside detention. As Sarah Turnbull argued, these conditions imposed in detention are experienced as a form of punishment, affecting both physical and mental health of those who are detained. Especially during the worldwide COVID pandemic, many countries have seen a decline in detention numbers, often accompanied by a rise in reliance on so-called “alternatives” to detention. Witold Klaus revealed how, in the context of Poland, such alternatives in fact are an extension of surveillance and control that force migrants to live in constant fear of future detention. In the U.S. context, Ulla Berg reported that alternatives to detention such as electronic ankle monitors and other digital surveillance tools had reached an all-time high during the pandemic, a reality emotionally documented by Carolina Sanchez Boe in her forthcoming documentary “Digital Borders.”

A parallel line of inquiry that emerged at the conference focused on the legal regimes responsible for the adjudication of migrant deportation cases. New research by Lorena Avila examined the determinants of bond decisions made by immigration judges in immigration court. In the Canadian context, Simon Wallace explored how adjudicators go about making detention decisions on the ground of public danger, including by weighing past criminal records and evidence of mental health challenges or substance abuse. Mirian Martinez-Aranda traced how immigrants, who all too frequently lack legal representation in immigration court, engaged in “precarious legal patchworking” to connect diverse forms of aid to their ongoing court cases, including by enlisting other detainees schooled in the law. Stephanie Peng analyzed evidence of partisanship in asylum decision-making by immigration judges; namely, that Republican-appointed judges were more likely to deport asylum seekers. Liz Bradley and Hillary Farber critiqued the troubling rise in use of video teleconferencing technology to adjudicate asylum claims in immigration courts, a practice that has proliferated in the wake of the COVID-19 pandemic.

The new project that I presented, “Detained Immigration Courts,” explores the intersection of these two distinct lines of research—one on migrant detention and the other on immigration courts. Together with my co-author Steven Shafer, we examine the origins and modern development of this merger of detention and adjudication, map its changing landscape, and investigate its troubling consequences. Despite their enormous scale, these immigration courts, focused exclusively on detention, have for the most part escaped the attention of scholars, and little information about their operation is publicly available.

To undertake this first investigation of detained immigration courts, we relied on a range of primary sources. Based on the immigration court’s own data compiled by the agency since the 1980s, we identify and analyze over 3.5 million cases of persons held in detention while their immigration cases were decided. Additionally, through site visits to detained immigration courts around the country, review of documents obtained from the agency with public record requests, and discussions with lawyers practicing in these courts, we expose the myriad of ways that detained courts diverge from their non-detained counterparts, threatening the due process rights of those who appear before them. We argue that these largely unregulated design elements of the detained docket assign systematic structural disadvantage to those who are detained during their case, above and beyond the fact of detention itself, converting the detained courts into a high-volume deportation pipeline.

Uncovering how detained courts operate on the ground allows for a greater institutional understanding of both the detention system and the courts. This project will therefore contribute to two important debates currently taking place in the academy and on the ground that are not often considered together: one on reducing or eliminating reliance on detention and the other on reforming the immigration courts. We hope that recognizing the central role that detained immigration courts play as the glue that binds together detention and deportation will advance these important discussions.

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