The Permanent Meaning of Temporary Detention

Post by Juliet Stumpf. Juliet is the Robert E. Jones Professor of Advocacy and Ethics at Lewis & Clark Law School. Her current research explores innovation in immigration advocacy and crimmigration, the intersection of immigration and criminal law. She has published widely in leading journals and books, including The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367 (2006) and co-authors the casebook Immigration and Citizenship: Process and Policy (8th ed. West 2016). Stumpf is a co-founder of CINETS, the transnational, interdisciplinary network of crimmigration scholars.  She serves as an Associate Director of Oxford University’s academic blog Border Criminologies and on the Board of Directors of the Innovation Law Lab.

‘We’re going to build tent cities. We’re going to put tents up all over the place … and they’re going to wait.’ With these words, President Trump announced a plan to detain Central Americans who reach the U.S. border and apply for asylum ‘until such time as their trial takes place.’

What does it mean to detain people in tent cities until the conclusion of their asylum hearing? There are at least two responses to this question: a legal one, and another that explores the meanings that flow from depicting the detention of families and individuals in a ‘tent city.’

As to the first: does U.S. law permit the government to detain asylum seekers in the United States throughout the course of asylum proceedings? This question has shadowed detained noncitizens and consternated courts since the first statutes were passed requiring detention of asylum seekers. The authority for detaining Central American asylum seekers is rooted in section 235(b) of the Immigration and Nationality Act, which sets out an ‘expedited removal’ process for noncitizens arriving at a border or who have recently entered without authorization and who do not have proper documents or have committed fraud or misrepresentation. In keeping with the United States’ obligation under the Refugee Convention, noncitizens who express fear of returning to their countries of origin have an opportunity to explain to an asylum officer that they have a credible fear of persecution if returned. That showing of fear entitles the individual to a hearing before an immigration judge on the merits of the asylum claim.

Establishing a credible fear also triggers the statutory mandate that the individual ‘shall be detained for further consideration of the application for asylum.’ Without the opportunity for a custody hearing to show that the noncitizen is not a danger to the community or unlikely to appear at the hearing, mandatory detention can be prolonged, lasting months and even years. Most appellate courts had concluded that interpreting the statute to permit lengthy detention without a custody hearing raised serious constitutional questions that could only be avoided by construing the statute to provide for custody hearings.

In February 2018, the U.S. Supreme Court decided Jennings v. Rodriguez, a class action brought on behalf of several classes of individuals who had been in prolonged custody for over six months without a custody hearing and in many cases for more than a year. Rodriguez concluded that the language of the statute mandated detention without a custody hearing, stating that “detention must continue until immigration officers have finished ‘consider[ing]’ the application for asylum.” Jennings abrogated the decisions by several courts of appeals that had construed the Act to require custody hearings in cases of prolonged detention.

Rodriguez has shifted the battle for custody hearings in prolonged detention cases from the statute to the Constitution, with the Due Process Clause as the battleground. The government has argued that the plenary power to deny entry and to deport includes the power to detain, unfettered by judicial oversight based on constitutional concerns. This plenary control is especially important at the border, where national security and sovereignty are paramount. And even if the Constitution applied, the Due Process Clause permits detention of asylum seekers because the asylum hearing provides an endpoint to detention. In opposition, the class of thousands of detained individuals argues that the bedrock of due process is the requirement of an individualized hearing before a neutral decision-maker as to danger or flight risk. Because many of them have meritorious claims for relief from removal, they have a powerful incentive to appear for the asylum hearing. Prior appellate cases concluded that once detention becomes prolonged, lasting longer than six months, denial of a custody hearing violates the Due Process Clause.

The Central American arrivals are unique in another legally salient way: many of the travelers are families with children. Detaining children, alone or with parents, triggers the protections in the Flores settlement agreement that limits detention of children, in effect, to a period generally lasting around 20 days. The Trump Administration is seeking to avoid the limitations that Flores provides by imposing on parents a Hobson’s choice either to separate the family, placing children in the custody of the Office of Refugee Resettlement, or to keep children with them in detention throughout the asylum process. This argument rests on the premise that the parent’s decision to maintain the family unit releases the government from the obligation to place children in the least restrictive setting.

Looming beyond these questions of the lawfulness of indefinite detention are the layered meanings inherent in the building of a ‘tent city.’  The term is evocative, powerful, and contradictory.

A tent constitutes shelter, but merely shelter, lacking the solidity of a building to ward off the elements. It is temporary by nature, easy to assemble and remove, and of low value. In each of those senses, tents mirror the imagined migrants they would contain.

Imagining tents as the building blocks of a ‘city’ adds another layer of meaning. Cities are large—large enough to contain the approaching multitude that the President Trump has branded as a dangerous, encroaching invasion. Tent cities, ubiquitous across the landscape, can contain and segregate from society these large numbers. Moreover, upon pulling up stakes and folding the fabric, these tent cities may disappear once their purpose has been served, leaving no trace of the inhabitants.

What meaning could President Trump have sought to evoke? Tent cities have been used by the military as temporary housing abroad, by UNHCR to house refugees, and domestically to house groups of homeless people or victims of disaster. The U.S. government used them in 1942 to hold families during the Japanese internment.

Today, the tent city has became an infamous punitive tool for a man President Trump has long admired. In 2017, President Trump pardoned Arizona’s Sheriff Joe Arpaio, who had been convicted of criminal contempt in a case finding rampant violations of immigrants’ civil rights. Arpaio’s most prominent accomplishment was to construct in the Southwest desert a tent city to house inmates and undocumented immigrants his forces had unlawfully arrested. Trump’s tent cities may have a similarly punitive pall.  Unlike tents for soldiers or victims or homeless people, Trump’s tents constitute an incarceration, tied to an administrative determination of asylum that he has instead labeled a “trial.” They are a supersized proliferation of Arpaio’s desert city. 

Looking ahead, one more layer of meaning appears. Cities, unlike tents, are permanent. How permanent can a city of tents be? One chronological precedent is Arpaio’s tent city, which lasted 24 years. The tent cities holding children separated from their parents, erected on June 14 and slated to close one month later, remain occupied and indefinitely open.

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How to cite this blog post (Harvard style) 

Stumpf, J. (2018) The Permanent Meaning of Temporary Detention. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/11/permanent-meaning (Accessed [date]).