Immigration Article of the Day: Trial by ICE: Immigration Detention as Adjudication and the “Great Writ” of Habeas Corpus by Jonathan Abel

Trial by ICE: Immigration Detention as Adjudication and the “Great Writ” of Habeas Corpus by Jonathan Abel

Abstract

In immigration law, detention has replaced adjudication as the executive’s de facto tool for resolving removal cases. Detention accelerates proceedings, pressures immigrants to abandon claims, and helps the government obtain outcomes that would be costly and time-consuming to secure through adjudication. This transformation has sidelined immigration court, once the central site of decision- making. In its place, detention has become supreme. This Article argues that as the executive has expanded its use of detention, detention has taken on adjudicatory functions, a phenomenon that this Article calls “detention as adjudication.” “Detention as adjudication” refers to a strategic effort to use detention to pressure immigrants to give up their legal efforts to fight removal. As a result of this shift, habeas corpus has moved from the margins of immigration law to its center. District courts, long stripped of jurisdiction over immigration cases, have taken on a new role because of the use of detention. These federal courts are now the forum in which immigrants obtain bond hearings, challenge unexplained redetention, and enforce limits on civil custody. This Article draws on the explosion of recent habeas cases, unprecedented in modern times, and on the author’s experience litigating these cases in four federal districts. It advances three main claims: Detention is now the executive’s primary tool for deciding immigration cases; habeas has become an ordinary—and, indeed, indispensable—mechanism for enforcing immigration law even in routine cases; and habeas has emerged as continuity-enforcing doctrine, bridging the divide between this administration and the ones that preceded it. Immigration habeas, the Article concludes, is not an anomaly. It is the law of immigration as it is now practiced.