Not A Matter of If, But 'When': Expanding the Immigration Caging Machine Regardless of Nielsen

Harvard Latinx Law Review, Vol. 22, No. 5, pp. 87-145, 2019

60 Pages Posted: 5 Dec 2019

Date Written: November 1, 2019

Abstract

Annually, over 400,000 people are held in 3x3m immigration cages (las hieleras), without access to counsel and subject to traumatic abuses, for an average time of six months before removal. To immigrant communities, the reality is that the immigration detention machine is constantly expanding and feeding on more Black, Brown, Asian, and Native who are politically designated as "illegal."

In Nielsen v. Preap, the Supreme Court was asked to determine whether a noncitizen after released from criminal custody can be subject to mandatory detention if the U.S. Department of Homeland Security does not immediately take the individual into custody. On October 2018, the Court was offered three interpretations to define “when” immigration authorities may detain (i.e. cage), without bond, undocumented people after they are released from criminal custody: (1) immediately, (2) within a reasonable time, or (3) anytime, without restriction. In March 2019 and in a 5-4 decision, the Court decided that DHS can detain and cage someone at any time after they are released from criminal custody. This article examines how this holding will contribute to the expansion of the immigration caging machine by entrenching Congressional authority to use immigration prisons as part and parcel of deportation procedures, incentivize private and State actors to bolster investment in immigration prisons and broaden criminal statutes to capture more immigrants, and expand State and Federal policing power. Most importantly, this article argues that even if the Court would have adopted an “immediate” or “reasonable when” holding, that these decisions would have also expanded the caging machine. This article traces the settler-colonial roots of the immigration caging machine to show that the institutional triangle of actors involved are fundamentally constructed and incentivized towards expanding the machine by criminalizing, caging, and removing as many immigrants as possible as forms of control and elimination.

This article concludes by arguing that, following the lead of organizers and directly impacted communities, movement lawyers must move beyond reform and instead abolish the immigration caging machine. This article seeks to add to immigration prison abolition scholarship by demonstrating how Nielsen―the premiere immigration detention case before the Supreme Court in the Trump era―complicates the immigrant liberation struggle.

Keywords: Immigration, Deportation, Trump, Prison, Mandatory Detention, Abolition, Settler-Colonialism, Removal, Immigration Reform, Crimmigration, Supreme Court, Homeland Security, Open Borders, Nielsen

JEL Classification: K14, K37, Z18

Suggested Citation

Hernández, Felipe De Jesus, Not A Matter of If, But 'When': Expanding the Immigration Caging Machine Regardless of Nielsen (November 1, 2019). Harvard Latinx Law Review, Vol. 22, No. 5, pp. 87-145, 2019. Available at SSRN: https://ssrn.com/abstract=3489571

Felipe De Jesus Hernández (Contact Author)

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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