We've used the word "detention" many times when we've talked about immigration laws and ICE. But what does that word actually mean? A listener wanted to know, so we got the answer.
Transcript
Hannah McCarthy: [00:00:01] Hannah McCarthy here. This is Civics 101. If you've listened to us in the past, you've almost certainly heard my co-host Nick Capodice or [00:00:10] me say, you know, if you have any questions, please ask us. We will do our best to answer them. Now, over the past few weeks, we have released several episodes about Immigration [00:00:20] and Immigration and Customs Enforcement or Ice. We tried to get down to the very basics of the system, how it works and [00:00:30] what has changed about it. One thing we did not do, however, is explain exactly what we meant when we kept referring to people being [00:00:40] detained. Fortunately, Tyler was listening.
Tyler: [00:00:44] Hello, Civics 101, this is Tyler from Milwaukee. Love your show. My question today is what [00:00:50] is detained and how is it different from arrested? And how long can someone be detained without being arrested? Thanks.
Hannah McCarthy: [00:00:58] So a huge thank you to Tyler, [00:01:00] without whom we might have glided glibly on thinking we knew what detention actually was. And a huge thank you to our guest who does know what it actually is. [00:01:10]
Georgiana Pisano: [00:01:10] Yes, my name is Georgiana Pisano. I'm a practicing immigration attorney and professor in Texas.
Hannah McCarthy: [00:01:16] You might remember Georgiana from our episode on asylum what [00:01:20] it is and how it has changed. And to my great relief, she was willing to once again help me wrap my mind around something that is referenced constantly in the headlines, something [00:01:30] that so many journalists, myself and Nick included, might talk about as though everyone knows what it means, when in actual fact, I [00:01:40] really didn't. All right, so first, Georgiana, what is detention?
Georgiana Pisano: [00:01:46] Yeah. What is detention? I don't know that it [00:01:50] is that different than what people are picturing in a criminal sense, in that it looks like jail or it looks like prison, but it is people with or without immigration [00:02:00] documentation. People who are not citizens are taken into government custody. Specifically the custody of the Department of Homeland Security. And they stay there [00:02:10] until whatever citizenship or immigration proceedings they are in or not in resolve.
Hannah McCarthy: [00:02:22] And [00:02:20] how does someone end up in a detention center? What gets them there?
Georgiana Pisano: [00:02:26] So what would get them into a detention center is that they are not a citizen, [00:02:30] and they have an interaction with a immigration official. So a member of DHS, whether they are subject to detention and whether DHS makes an initial determination [00:02:40] that they should be sent to a detention center, is going to have to do with their individual immigration background and the circumstances of their apprehension by immigration authorities. [00:02:50]
Hannah McCarthy: [00:02:51] And is apprehension different from arrest?
Georgiana Pisano: [00:02:55] Yes. So I think there is some confusion around arrest, because [00:03:00] it's so common in a criminal setting that you would have a warrant for your arrest, that you had committed a crime and that subjected you to arrest. The apprehension [00:03:10] is a bit of a broader term, because you don't have to commit a crime to be apprehended and sent to detention. It can be that you don't have immigration status, right? [00:03:20] Which is a civil a civil offense. But, you know, when we use the phrase arrest, it can kind of lead to some confusion in that area.
Hannah McCarthy: [00:03:28] In terms of the legality. [00:03:30] You say perhaps when people picture what detention is, it's not terribly different from jail or prison. How is it legally different?
Georgiana Pisano: [00:03:40] How [00:03:40] is it legally different? It is accounted for in a different law than criminal detention. So our jails and prisons follow different [00:03:50] standards and laws and statutes that govern individuals criminal detention and what those detention centers look like jail and prison. [00:04:00] The immigration detention centers are under a different statute, the Immigration and Nationality Act. So they follow different standards and they serve [00:04:10] sort of a different purpose. But the idea of what they look like and what they feel like is very similar. I have heard from some individuals that they don't look like [00:04:20] jail or prison in comparison. I've been in all three, and I do think they have a lot of similarities to each other. In some aspects. [00:04:30] What I saw in the immigration detention centers was much more severe than what I saw in some low security prisons.
Hannah McCarthy: [00:04:43] Could [00:04:40] you describe for us what's actually in a detention center? What have you seen?
Georgiana Pisano: [00:04:48] Yeah. So it's [00:04:50] there are many detention centers across the country. I saw one in the El Paso region in 2022 or 2023. And so that's all going to be, you know, subject to the time and place. [00:05:00] They are closed to the public for tours. Although individuals can visit detainees depending on the availability of each individual detention center. [00:05:10] And they do offer tours to government employees and sometimes to employees and congressional representatives.
Speaker4: [00:05:16] This visit comes at a moment of national scrutiny over Ice. California [00:05:20] Senator Alex Padilla and Adam Schiff say they're responding to concerns about how detainees are being treated inside this facility.
Speaker5: [00:05:27] When you walk inside.
Georgiana Pisano: [00:05:28] It looks like a center [00:05:30] block cement building. It's flat. It's surrounded by barbed wire. Every door locks behind you. Every door has to be unlocked before you go through it. [00:05:40] You go through security. There are very strict dress codes, that sort of thing. What struck me when I went was that the dorm area [00:05:50] in this specific detention center was bunk beds, and it was a dorm area, an activity area in a bathroom. None of those areas [00:06:00] were separated by full walls. Which is to say, you could be sitting at a table and see someone using the restroom. That's not necessarily something you would see in a low [00:06:10] security prison. Right. You might at least have a toilet stall. They had these pieces of metal screwed into the wall that were clearly burnished, so you [00:06:20] couldn't see anything in them. But the detention officer said, here are the mirrors. I don't know if you can tell me that's a mirror with a straight face, but the detention officer [00:06:30] just said, you know, oh, it needs to be polished. You're not allowed to have your own cell phone. [00:06:40] So they detainees, individuals who are detained in these centers have limited access to phone time. They have to pay to use the phone.
Georgiana Pisano: [00:06:49] In recent [00:06:50] years, we've seen a little bit more access to video calls, but still not quite. This is a bit of a larger philosophical question for why don't people in jail and prison have phones? [00:07:00] I would suggest that it's because you don't want them to continue any criminal enterprise. That's not an issue in immigration detention. So there [00:07:10] is, you know, a question of why those individuals are not given more access to their belongings and to communication and to family members. There's an outdoor area, there's a big [00:07:20] cafeteria. There are jobs. They can work in the cafeteria or work in the laundry room. According to my tour of the detention facility, those jobs are all optional, [00:07:30] but I don't know who would do them if the detainees did not. I guess one of the largest differences is that immigration detention is not built for a long term stay. So [00:07:40] in theory, you wouldn't be there long enough to get the jobs that you see in prisons where they're manufacturing big items and working for third party companies [00:07:50] and things like that. But it also means that people that do stay in immigration detention for a long time are not receiving what they should be receiving in long term care.
Hannah McCarthy: [00:08:01] Okay, [00:08:00] so you're describing something that sounds very much like a prison, which is a place someone ends up after they have been through the criminal justice system, [00:08:10] after they have been arrested, charged, gone through the court system, been convicted, been sentenced. That is not the process that precedes the kind of detention we are talking about [00:08:20] today. So what is the rationale behind the detention of undocumented immigrants? Is it the same rationale behind criminal detention?
Georgiana Pisano: [00:08:29] I guess I [00:08:30] should say that criminal detention, one of the reasons is punitive, and that is impermissible as a rationale for immigration detention. It is [00:08:40] impermissible for immigration detention to be used as a deterrence tactic, which is how the United States uses it to deter people from seeking asylum or any form [00:08:50] of immigration status in the United States by threatening them and following through with immigration detention. This is unlawful under international human rights law and is not a permissible [00:09:00] rationale for the use of immigration detention. The other stated concerns that differ a little bit from criminal detention is that individuals will be ordered [00:09:10] deported, but they won't leave the United States, and that the state has an interest in public security and that some of these individuals have committed crimes and should be [00:09:20] detained pending their immigration proceedings.
Hannah McCarthy: [00:09:23] Okay. So this actually helps to explain why the United Nations human rights chief has called the [00:09:30] United States out. You know, reminded the country that it is bound to follow international law.
Speaker6: [00:09:36] Un human rights chief Volker Turk calls on the United States [00:09:40] to ensure that its migration policies and enforcement practices respect human dignity and due process rights, decrying the dehumanizing portrayal [00:09:50] and harmful treatment of migrants and refugees.
Hannah McCarthy: [00:09:53] Now, this also makes me think of our own law, specifically habeas corpus, that is, you know, the legal tool, the procedure by [00:10:00] which someone can challenge their detention by the government if they don't think the government has the legal authority to detain them. And [00:10:10] habeas corpus is something that the Trump administration has suggested it could suspend.
Speaker7: [00:10:14] Well, the Constitution is clear. And that, of course, is the supreme law of the land, that the [00:10:20] privilege of the writ of habeas corpus can be suspended in a time of invasion. So it's an option we're actively looking at. Look, a lot of it depends on whether the courts do the [00:10:30] right thing.
Hannah McCarthy: [00:10:32] Is habeas corpus coming up a lot lately in cases of immigrant detention?
Georgiana Pisano: [00:10:38] Yes, absolutely. Habeas [00:10:40] comes up a lot. And I will say in the past 12 months has skyrocketed in the immigration profession as really like one of [00:10:50] your client's only options, uh, because the detention rates are going up so significantly, and the access to counsel, among other things, from detention is so [00:11:00] challenging. Now, the reasons for an individual's detention will also dictate whether or not they are plausibly going to receive [00:11:10] habeas relief, be released as a result of a petition for habeas.
Hannah McCarthy: [00:11:19] The [00:11:20] reasons for detention, the length of that detention and so much more is coming up after a quick break. We're [00:11:40] back. A little reminder here that though things [00:11:50] are certainly changing in this nation. Legal interpretations among them. It is still vitally important to know our laws, know our history, know [00:12:00] the point of the United States of America. Everyone needs a reminder now and then. Some people are especially forgetful. Fortunately, my co-host [00:12:10] Nick Capodice and I wrote a book. It is called A User's Guide to Democracy How America Works. It's got nearly everything you need to be able to say, hey, [00:12:20] now that's a violation of my constitutional rights or any number of other things. And it is also fun because if you can, you've got to have [00:12:30] some fun. You can get a User's guide to democracy wherever books are sold. All right, on to the show. This [00:12:40] is Civics 101. I am talking with Georgiana Pizano [00:12:50] gets practicing immigration attorney and professor of law at the University of Houston Law Center, who is generously helping us to understand what immigration detention [00:13:00] is. And before the break, we started to get into the different situations a detainee might be facing. Okay. So, Georgiana, can we talk about [00:13:10] those different situations for a detainee, why they are in detention, for how long, etc.?
Georgiana Pisano: [00:13:17] As far as length of stay [00:13:20] or knowing when you are going to get out? Obviously when you're in criminal detention, you receive a sentence. You know what sentence you're going to serve. Immigration is a little bit harder. If you're in removal proceedings. [00:13:30] You presumably will be either released when you succeed in your removal proceedings or deported if you do not succeed. However, [00:13:40] that can take a long time for your removal proceedings to take place, which in criminal proceedings people sometimes remain incarcerated during their trial as well. There [00:13:50] are individual subject to immigration detention, who have already had their removal proceedings and either received an order of deportation, and [00:14:00] for whatever reason, the government was not able to deport them. This happens when an individual succeeds in their proceedings and they receive protection [00:14:10] from deportation, like withholding or deferred action.
Hannah McCarthy: [00:14:13] Okay. And just quickly jumping in here removal proceedings. That means the government is trying to remove you from the country, [00:14:20] trying to deport you. You know, for example, for overstaying your visa or unauthorized entry into the country. You get a notice to appear for a hearing. You have a right to a lawyer [00:14:30] at your own expense. You get a chance to argue your case for staying in this country, and a judge either says you do have to be deported or delays [00:14:40] your removal. You can think of Deferred Action for Childhood Arrivals or DACA, for example, or a judge withholds your your [00:14:50] deportation says you cannot be deported.
Georgiana Pisano: [00:14:53] I believe this is what Kilmer Abrego had withholding of removal, which means that the government cannot deport them to their home country, [00:15:00] but they can deport them anywhere else that will take them. Now, [00:15:10] for obvious reasons, the US did not pursue this right. If someone has a genuine fear of their home country and they don't have ties to any other country, they [00:15:20] get to stay. They don't have a path to citizenship, but they don't get deported. But technically they have been ordered deported from the United States. And [00:15:30] just that deportation has been withheld to their home country. What we're seeing now is that individuals in that situation are being detained under this administration, and [00:15:40] the administration is trying to get some other country to take them. We also see individuals who did not succeed in any way, did not receive any relief, like withholding or a deferred [00:15:50] action received an order of deportation, but the government still was not able to deport them. This happens when the government doesn't have a good relationship with the home country of the individual. [00:16:00] Cuba is very unlikely to receive deportees from the United States. A lot of countries might decline to take, you know, what may [00:16:10] be seen as rejects from the United States. And so then they get caught, right? And they have an order of deportation. And DHS could detain them, but they might be detaining them [00:16:20] forever because they never get that diplomatic relationship repaired, and they can never actually effectuate deportation. Those individuals for the past several [00:16:30] years to decades have been released on an order of supervision. They go to an Ice office every year. They confirm their address. So if Ice ever thinks they [00:16:40] could actually deport them, they can take them back into detention. But in all likelihood, those circumstances don't change. And the government does not effectuate that deportation. [00:16:50]
Hannah McCarthy: [00:16:50] Okay, so that to me sounds similar to probation. You're not under lock and key, but you do have to check in with the powers that be. There are restrictions. [00:17:00]
Georgiana Pisano: [00:17:00] Supervised release. So, yeah, very similar idea. Under this administration, they are not confirming that a country will receive this individual, but [00:17:10] they are taking everyone in that procedural posture back into custody.
Speaker8: [00:17:14] Obviously, Ice is focused on detaining individuals who are unlawfully present [00:17:20] in the country. And there have been hundreds of thousands of of illegal aliens who have been arrested and detained and deported from this country by Ice over the course of [00:17:30] the last year. And that's their intention, and that is their goal.
Hannah McCarthy: [00:17:37] And I just want to make sure I have this correct. We used [00:17:40] to release these individuals from detention centers. They would be on supervised release. The government cannot find a way to deport them. But now [00:17:50] we are bringing these individuals back into detention centers. But this is with the knowledge that they have already gone through [00:18:00] a removal proceeding, that we cannot find a way to deport them. So are these individuals now in a kind of limbo where [00:18:10] they will just be in this center for who knows how long?
Georgiana Pisano: [00:18:14] That is exactly right. And that is where habeas comes in, because these are individuals that will never see a judge. [00:18:20] They will never see an immigration judge. They are not in proceedings. Their proceedings are closed. So they are just sitting in a detention center being told that they're going to be deported for months. [00:18:30] And it never happens months, if not longer. So that's where the immigration attorneys step in to file the habeas petitions with the federal courts to challenge their detention, because there [00:18:40] are laws against detaining individuals for longer than six months after they've been ordered removed. If the government cannot show that there's a reasonable likelihood that [00:18:50] they will actually be deported, right? Because then people could just be there forever.
Hannah McCarthy: [00:18:53] And that would, of course, be very illegal. Part of the reason the framers put habeas corpus in the Constitution, article one, [00:19:00] section nine. Okay. And you are saying for those individuals, the people who got the deportation order, the government could not deport them but has them in custody. Now, their only [00:19:10] option is a habeas petition.
Georgiana Pisano: [00:19:12] If they're an individual like the ones we've been talking about who have already completed their removal proceedings, they have very few rights, right? They have a right to file [00:19:20] a habeas petition, but they're not going to be put in touch with an attorney. They're not going to be informed of that avenue.
Hannah McCarthy: [00:19:26] So they can work with a lawyer, but they have to figure it out on their [00:19:30] own. Okay. So what about the people who have not actually gone before a judge yet but are in detention? What are their options?
Georgiana Pisano: [00:19:39] We might [00:19:40] refer to the first group as post order because they're after an order of removal, and then we might refer to everyone else as like pre order. There's no order of removal or order granting relief. And [00:19:50] then the preorder individuals are in two different groups. One group is eligible for release on bond, and they have a right to a custody redetermination hearing before an immigration [00:20:00] judge. The other group is subject to mandatory detention, and they do not have a right to even be considered to be released on bond. This is very different [00:20:10] than criminal detention. And what we are seeing in 2025 and 2026 under the new administration is that the statutes that allow for mandatory detention, [00:20:20] which were significantly increased in our last major immigration statute, which was the 1996 law, Illegal Immigration Reform and Immigrant Responsibility [00:20:30] Act largely expanded mandatory detention. And we're seeing a huge expansion of mandatory detention under this current administration. [00:20:40]
Hannah McCarthy: [00:21:00] Now, [00:21:00] what does mandatory detention mean?
Georgiana Pisano: [00:21:03] There is a phrase in the statutes for mandatory detention that reads shall be taken into [00:21:10] custody. This has previously included orders of supervision. Right. That they check in with DHS. Maybe DHS gives them an ankle monitor. Any number of things. [00:21:20] The current administration is reading shall be taken into custody to equate to detention, mandatory detention that is not subject to review by an immigration judge. [00:21:30] So this is subjecting a huge new group of people to detention with no relief, no rights to a custody determination.
Hannah McCarthy: [00:21:39] Okay, a custody [00:21:40] redetermination meaning a bond hearing. Right? Like, you pay money and you're allowed out of detention. They do not have that option, and supervised [00:21:50] release used to be an option for this category of people to this preorder category. But this administration is not doing that anymore. [00:22:00] So way more people in detention centers now. What about moving these detainees? Is there any law or rule that says that they [00:22:10] have to stay in one place? Or can the government move people from one center to another?
Georgiana Pisano: [00:22:17] Yes. You are able to be moved from one detention to another [00:22:20] and you will be moved. Um, that is completely a DHS discretion. We have no idea why or when they will choose to do that, but it does [00:22:30] not matter to DHS if you move across state lines because you're in federal custody. However, the law that applies to your case will change [00:22:40] depending on the detention center you are in. It will change in your immigration proceedings based on the circuit that you are in, which refers to [00:22:50] sort of regional legal rules that apply in the US, and it will change where your habeas petition is filed and what judges are going to hear your habeas petition, because it has to [00:23:00] be filed where you are being detained. So what we are seeing is that an attorney jumps in, they file a habeas petition, and DHS moves the individual away from [00:23:10] the district where the habeas petition is pending, which removes the court's jurisdiction over the issue. Although the court some courts are trying very hard to keep that jurisdiction because it's a very obvious [00:23:20] bad faith behavior to have control over the location of one party and then just move them. We saw a lot of individuals who were apprehended [00:23:30] in Minnesota be transferred directly to Texas. Texas is in the Fifth Circuit. The Fifth Circuit is a very challenging place to have your immigration proceedings. [00:23:40] And very recently, maybe 2 or 3 weeks ago, the Fifth Circuit issued a rule on these mandatory detention cases and whether or not they can have a bond hearing that [00:23:50] really favored the government and stripped individuals of that bond hearing. So now I think we will see a huge uptick in DHS detentions and transfers to Texas, because they want that Fifth Circuit [00:24:00] law to apply where individuals don't have access to bond, regardless of where they were apprehended in the first place.
Hannah McCarthy: [00:24:12] All [00:24:10] right. And, you know, just thinking about incarceration in the criminal system in America, I know that's really costly. I know totally depending on the state, but it can be [00:24:20] anywhere between tens of thousands to hundreds of thousands of dollars per person per year. What is this increased detention of undocumented [00:24:30] immigrants in the U.S. right now costing us?
Georgiana Pisano: [00:24:34] Yeah, so it's very expensive and it doesn't make money for taxpayers. It makes money for private [00:24:40] prison groups, specifically CoreCivic and Geo Group, who are all over and actually run. A huge number of these detention centers have been outsourced to these private groups [00:24:50] rather than being run by the government, which also brings up issues with accountability in people's ability to file complaints. Numbers wise, we are [00:25:00] seeing the current administration. I don't have completely up to date numbers, but we're well over 55,000 people being in detention at any given time. We know [00:25:10] from a couple years ago that in June 2024, Congress approved 3.4 billion for this project. And we know that detaining individuals [00:25:20] in immigration detention costs about $160 per person per day. And so it is extremely expensive. It's way more expensive than ankle monitors or [00:25:30] any other form of supervision. And as far as the money, it just is going to be out of that huge check that Congress cut for DHS a couple of months [00:25:40] ago in the in the federal spending bill.
Hannah McCarthy: [00:25:42] And do you happen to know when detention centers first came into play in the immigration enforcement system in the US?
Georgiana Pisano: [00:25:49] So they've been around [00:25:50] for a long time. I will say the large majority of individuals, um, non-citizens until about 1982 were [00:26:00] released on parole, which is going to be that kind of supervised release, which obviously looked very different in 1982. But between 1954 and 1982, most [00:26:10] non-citizens were released from immigration detention. There was just little to no interest in that, you know, huge financial investment in keeping people under 24, [00:26:20] over seven care.
Hannah McCarthy: [00:26:31] Now, [00:26:30] I know that you have mentioned several laws and provisions over the course of this conversation, but is there an overarching legal [00:26:40] justification or guideline for the way the system is functioning right now. It sounds like it is operating in a very different sphere from our [00:26:50] other legal systems.
Georgiana Pisano: [00:26:52] I think that is definitely how the current administration wants you to think about it. And what their arguments are rooted in is that this [00:27:00] detention is justified and lawful under the Immigration and Nationality Act, and these detention centers are built to satisfy these standards of [00:27:10] national detention standards set by Ice, which are different than the criminal standards. And there's really no reason for that. There's really no reason to have a different set of detention standards. If [00:27:20] you're detaining individuals, the standards for where they could should be kept and what they have access to should look pretty similar and certainly should not be lower. But I do think the argument [00:27:30] under the current administration is that this is a whole new ball game. We need to be considering it completely separately, which is why some people can go into detention who are not in proceedings, who have [00:27:40] no access to an immigration judge. And, you know, very limited access to counsel or any of the things that people in the criminal justice system have fought so hard [00:27:50] to create this access for, for criminal detainees for decades. It feels like we are starting over at zero with immigration detention, and there is no reason for that. If [00:28:00] anything, there's very little reason for detention at all when you're talking about a civil offense. I did want [00:28:10] to note that what determines what the detention center looks like or has is the Ice performance based national detention standards, which [00:28:20] are not the same standards that apply to the criminal sense, obviously, because they're by Ice. And I do want to note that the standards are nonbinding, so the detention centers do not actually have to [00:28:30] meet them.
Hannah McCarthy: [00:28:30] So there are guidelines, but there's nothing that says that Ice has to abide by them.
Georgiana Pisano: [00:28:37] They do not have the force of law. They are simply nonbinding [00:28:40] suggestions.
Hannah McCarthy: [00:28:42] Is there any law that explicitly states how these detention centers should be operating?
Georgiana Pisano: [00:28:48] I would not say explicitly. [00:28:50] Any detention is going to be subject to the Eighth Amendment, that it can't be cruel and unusual.
Hannah McCarthy: [00:29:01] Okay. [00:29:00] My last question for you, Georgiana. When you personally look at the shifts that have occurred within this detention system, how do you, [00:29:10] as a practicing immigration lawyer, interpret these changes?
Georgiana Pisano: [00:29:15] It is very obviously a effort [00:29:20] to deter people from immigrating to the United States. Period. Dhs is now offering individuals in detention up to $3,000 to deport themselves, which [00:29:30] is also not something they can really offer under the law. But they're proceeding with that anyway, which tells you that the government would rather pay someone pay to detain [00:29:40] them, which is very expensive, and then pay them $3,000 rather than have them join the economy and work. So it is a huge just [00:29:50] push against immigration, lawful and otherwise. It simply does not matter to them. More cynically, it is a huge wealth transfer to these private prison [00:30:00] companies. The more detention there is, the more centers are built. The more people are detained, the more money core civic and Geo group get paid by the federal government.
Hannah McCarthy: [00:30:17] That [00:30:10] was Georgiana Pisano Gaetz, practicing [00:30:20] immigration attorney and professor of law at the University of Houston Law Center. And [00:30:40] that [00:30:50] does it for this episode of Civics 101. It was produced by me, Hannah McCarthy, and our executive producer Rebecca Lavoie. Nick Capodice is my co-host. Marina Henke is our producer. Music in this [00:31:00] episode comes from Epidemic Sound. If you have questions, please do not hesitate to ask. Tyler did, and without that question, I would certainly be unknowingly in the dark on this one. You [00:31:10] can submit a question by clicking the ask Civics 101 a question link on our home page. Civics101podcast.org. Civics 101 is a production of NHPR New [00:31:20] Hampshire Public Radio.