Introduction
In July 2019, the Office of the Inspector General of DHS issued a memo urging that DHS take “immediate steps to alleviate dangerous overcrowding and prolonged detention of children and adults” in detention facilities throughout the Rio Grande Valley.
Like the detention centers subject to the memorandum, others across the United States have run out of space, and some are operating at triple or quadruple capacity.
Highly backlogged immigration court dockets are further intensifying the problem of overcrowded detention centers.
Recently, U.S. immigration court dockets totaled over one million pending removal cases, and the largest courts were tremendously underresourced,
causing some individual removal hearings to be scheduled as far out as August 2023.
As more asylum seekers enter the United States and remain detained in overpopulated detention facilities, and as immigration dockets continue to pile high, pretrial release plays a key role in reducing the strain on the broader immigration system.
Detained noncitizens can be released from detention until their removal proceedings if they can show they (1) would not pose a danger to other people or property, (2) would not pose a threat to national security, and (3) would attend hearings if released.
But in 2017 alone, more than 300,000 noncitizens were held in initial custody in U.S. Immigration and Customs Enforcement (ICE) facilities,
nearly double the amount of people held in federal prisons that same year.
The sheer number of detainees, coupled with steep increases in median bond prices—from $5,000 in FY2007 to $8,000 in FY2018—has led to unduly long stays in overcrowded detention facilities.
Advocates and scholars argue that prolonged detention before removal proceedings dampens detainees’ opportunities to secure legal representation and even incentivizes them to self-deport.
Moreover, the rising costs of immigration bond can be scrutinized in light of recent legal scholarship on bail in the criminal context, which suggests that money bail is prohibitively expensive for defendants
and ineffective in ensuring their court appearances.
Much of the literature concerning pretrial detention deals with the criminal pretrial context, and few empirical studies have assessed the causal effects of pretrial immigration detention on several immigration-specific outcomes.
In particular, no studies have examined the relationships between (1) time spent in detention and a noncitizen’s propensity to opt to voluntarily return to their country of origin, (2) attorney representation at the bond redetermination stage and immigration proceeding outcomes, or (3) bond and a noncitizen’s flight risk.
As an initial step in addressing this gap in the literature, this Note applies empirical methods commonly deployed in pretrial detention and bail scholarship to case data published by the Executive Office for Immigration Review (EOIR) in order to assess the impact of pretrial detention on immigration case outcomes. Through regression analysis of over eight million immigration cases, this Note tests three prevalent hypotheses about pretrial immigration detention: that prolonged immigration detention discourages noncitizens to pursue their cases and thus encourages them to self-deport, that attorney representation in a noncitizen’s bond reconsideration hearing is correlated with favorable immigration proceeding outcomes, and that money bail is not correlated with a reduction in flight risk. This Note concludes that there is not a strong association between detention lengths and voluntary departure decisions, that access to counsel at the bond redetermination stage may positively impact removal proceeding outcomes, and that, while money bond may help prevent flight risk, bail amounts may have only minimal effects on a noncitizen’s propensity to fail to appear in immigration court.
This Note proceeds in three parts. Part I presents an overview of bail generally, explores pretrial immigration detention, describes the impact that detention may have on immigration case outcomes, and explains the need for additional exploration. Part II lays out the empirical methods employed in this Note’s study and presents the study’s findings. Last, Part III discusses the study’s conclusions and implications, proposes policy and advocacy recommendations, and suggests avenues for further study.