Identifying Limits to Immigration Detention Transfers and Venue
44 Pages Posted: 21 Aug 2019
Date Written: March 31, 2019
The government claims that it may transfer immigration detainees to any detention facility across the country. The scale of the current transfer practice is staggering—more than half of all detainees experience at least one transfer, and detainees are often transferred to the Fifth or Eleventh Circuits. This choice in detention location, in turn, essentially determines where venue rests for immigration court proceedings and limits where detainees may access Article III courts. In other words, the government has broad discretion to choose where to detain an immigrant and which courts will hear the immigrant’s case. Despite the immense impact on immigrant communities, there is a dearth of legal scholarship examining this practice. This Note aims to fill that gap. It first thoroughly analyzes immigration detention transfers and venue—the legal framework for this arrangement, the scope of the transfer practice, the government’s justifications, and how these justifications are mostly exaggerated and ultimately outweighed by the hardships inflicted on detainees. This Note then explores where to look for possible protections. Although there is a trend in immigration law scholarship over the last two decades to argue for importing criminal law protections into the immigration system, this Note argues that the relevant criminal analog here is insufficient. Instead, the civil context offers a better possible constraint on the government’s discretion: There might be an unrealized Fifth Amendment due process limit to whether a court can exercise personal jurisdiction over an immigration detainee if the particular forum is exceedingly unfair and burdensome.
Keywords: immigration, detention, detainee, transfer, transfers, immigrant, venue, vicinage, personal jurisdiction, crimmigration
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