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Journal of Law and Policy

Abstract

This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to face psychological and logistical barriers to fighting their deportation. From the outset, ICE has resisted regulation and adherence to its own guidelines, resulting in harm to detainees without the protections and recourse afforded to those in criminal custody. The agency’s unlimited authority to effectuate transfers can be traced to specific failures within each branch of government, including the lack of statutory or regulatory authority to rein in ICE practices and jurisdiction-stripping statutes that systematically prevent noncitizens from challenging immigration agency decisions. The intractable problems raised by transfers—including the limits of ICE detention infrastructure and the challenges of enforcing standards across public and private facilities—highlight the problems inherent in an enforcement strategy with detention at its center. This article concludes that transfer policies require not reform, but reimagination of immigration enforcement within a framework that offers safeguards for the rights of noncitizens in removal proceedings.

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