Article

Immigration Detention: Information Gaps and Institutional Barriers to Reform

Alina Das

Assistant Professor of Clinical Law, New York University School of Law

I thank Michael Tan, Nancy Morawetz, and the participants in The University of Chicago Immigration Law and Institutional Design Symposium, held at The University of Chicago Law School on June 15 and 16, 2012, for their insightful comments and suggestions. I am grateful for the excellent research assistance of Anthony Enriquez and Rebecca Fisher, and for the meticulous review by the editors of The University of Chicago Law Review.

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.

TABLE OF CONTENTS