This Article examines and critiques the institutional design choices underlying the civil immigration detention system in the United States. The stated objective of this system is to effectuate removal orders and ensure public safety during the removal process by detaining noncitizens who pose a flight risk or danger to the public. The design choices utilized to achieve this objective, however, hinder the effective acquisition and use of information regarding flight risk and danger. Reliance on mandatory detention, evidentiary limitations, and shifting burdens of proof create a presumption of detention. As a result, decision makers lack the means or the incentive to collect and use information to release individuals who do not pose a flight risk or danger— including individuals who may not ultimately be removed from the United States—at significant cost to the administration of the immigration system as a whole.
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