Presidential Ideology and Immigrant Detention

49 Pages Posted: 17 Oct 2019 Last revised: 7 May 2020

See all articles by Catherine Y. Kim

Catherine Y. Kim

Brooklyn Law School

Amy Semet

SUNY, University of Buffalo

Date Written: October 7, 2019

Abstract

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Given severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an Immigration Judge (IJ). Although these IJs preside over relatively formal on-the-record hearings and are understood to exercise “independent judgement,” concerns have been raised that they have been subject to control by political superiors in the Executive Branch.

We analyze roughly 630,000 individual custody decisions by IJs from 2001 through June 2019 to explore this question. Our bivariate analyses based on cross-tabulations (without additional controls) show that noncitizens fared worse in bond proceedings during the Trump Administration than they did during the prior two Administrations. Moreover, the difference is not solely attributable to the behavior of Trump appointed IJs. Rather, even appointee cohorts who had been relatively favorable toward noncitizens during prior Eras imposed higher bond amounts and were more likely to deny bond altogether during the Trump Era. These findings suggest that political actors in the Executive Branch may be influencing immigrant bond outcomes not only through their power to appoint, but also through their power to supervise.

Keywords: immigration; separation of powers; detention;

Suggested Citation

Kim, Catherine Y. and Semet, Amy, Presidential Ideology and Immigrant Detention (October 7, 2019). Duke Law Journal, Vol. 69, 2020, Available at SSRN: https://ssrn.com/abstract=3465859

Catherine Y. Kim

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Amy Semet (Contact Author)

SUNY, University of Buffalo ( email )

522 O'Brian Hall
Buffalo, NY 14260
United States

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