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Immigration Law

Jennings and the Metastization of the ERO Archipelago

Garrrett Epps, The Atlantic, Mar. 9, 2018 - "A quarter-century ago, in 1994, the Immigration and Naturalization Service, on any given day, was holding somewhere around 5,500 immigrants in “immigration detention.”

For fiscal year 2017, Immigration and Customs Enforcement budget documents projected an average daily population in detention of roughly 31,000. That increase—nearly six-fold in 25 years—made the Enforcement and Removal Operations division of ICE roughly the 13th largest prison system in the country. On its busiest days in FY 2017, ICE housed a population well above that.

During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

In 1973, the great Russian writer Alexandr Solzhenitsyn coined the term “Gulag Archipelago” to denote the Soviet system of political prisons and labor camps. In the last 25 years, the United States has, without fanfare, brought into being a kind of ERO Archipelago—secretive, loosely supervised, and, in human and constitutional rights terms, deeply problematic. And the “system” will, if the current administration carries forward its enforcement plans, grow significantly larger year by year.

As of 2016, only about 10 percent of detainees were held in federal facilities at all; the remainder were housed in state, county, or city jails (25 percent) or private for-profit prisons (65 percent). Each of the local or private facilities is governed by an agreement with ICE governing inmate conditions, and the agreements aren’t uniform. Some require better conditions than others. Even ICE’s defenders do not seriously contest that ERO detention facilities are rife with poor physical conditions, inadequate medical care, and physical and sexual abuse of the inmates.

The inmates in the archipelago’s exploding prison population are, almost without exception, not charged with or awaiting trial for any crime at all. Some have committed crimes and completed their sentences; some have entered the U.S. without permission; others have done nothing wrong except request admission to the United States under our laws when Customs and Border Protection Officers believe they are not entitled to do so.


These facts are the backdrop to Jennings v. Rodriguez, an important immigration case decided by the Supreme Court last week. There were two issues in Jennings. The first was whether the Immigration and Nationality Act, which governs ERO’s detention of aliens, required that those being held receive a regular chance at release on bail. The second was whether the Act, if it did not allow a chance for bail, violates the Fifth Amendment’s guarantee of due process.

By a 5 to 3 majority, the Court gave a troubling answer to the two questions. First, the majority said the statute doesn’t permit regular bail hearings; second, it refused to even consider the constitutional issue. Instead, the Court sent the case back to the Ninth Circuit for a first crack at that—but hinted strongly that the appeals court should find a reason to dismiss the case rather than decide it.

... As scholars like Hiroshi Motomura of the University of California at Los Angeles have documented, for most of American history, immigration law and policy was largely focused on helping new immigrant populations assimilate to American life and gain citizenship, not on arresting, prosecuting, or expelling them. In the past half-century, it has, without much fanfare, steadily transformed itself into something far closer to an internal espionage and control apparatus, aimed at policing a population of “illegal immigrants” who are, by lifelong status, unequal to others in the U.S. Long-term detention was once extraordinary; increasingly, it is becoming routine.

As the size of the ERO archipelago grows, so should constitutional concerns."