Mandatory Immigration Detention for U.S. Crimes: The Noncitizen Presumption of Dangerousness

Mark L. Noferi


December 22, 2013

Immigration Detention, Risk and Human Rights, Springer, 2014

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes — if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a “noncitizen presumption” of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with that risk increasingly seen as little different regarding noncitizens, at least those treated with dignity. Moreover, this “noncitizen presumption” of danger contravenes empirical evidence, and diverges from parallel criminal pretrial detention reforms. Rather, it rests on stereotypes of dangerous, recidivist “criminal aliens” — even more salient to preventive detention determinations, given a noncitizen’s inherently speculative past. I preliminarily offer two theories for the “noncitizen presumption,” both reflecting expressive characteristics of immigration detention — government overcompensation for public “blaming the gatekeeper,” and complementarily, a social construct of noncitizens as invitees, derived from property law.

Number of Pages in PDF File: 42

Keywords: immigration, detention, criminal law, mandatory detention, pretrial detention, preventive detention, crimmigration, borders, invitee, property law

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Date posted: December 21, 2013 ; Last revised: January 1, 2014

Suggested Citation

Noferi, Mark L., Mandatory Immigration Detention for U.S. Crimes: The Noncitizen Presumption of Dangerousness (December 22, 2013). Immigration Detention, Risk and Human Rights, Springer, 2014. Available at SSRN: http://ssrn.com/abstract=2370062

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Mark L. Noferi (Contact Author)
Independent ( email )
No Address Available
United States
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