Immigration Article of the Day: JRAD Redux: Judicial Recommendation Against Immigration Detention by Mary Holper

The Immigration Article of the Day is “JRAD Redux: Judicial Recommendation Against Immigration Detention” by Mary Holper, forthcoming in the George Washington Law Review and available on SSRN here.

Here is the abstract:

There is a dire need for bail reform in the immigration detention system. Scholars have suggested a variety of recommendations to improve the manner in which immigration detention decisions are made. For example, the immigration detention system can grant more procedural protections in bond hearings, improve the risk assessment tool used by Immigration and Customs Enforcement (“ICE’) agents, require decisionmakers to seriously consider a wide variety of alternatives to detention, and decrease reliance on money bail. All of these recommendations have rested on the assumption that there is a finite pool of decisionmakers: ICE, the immigration judge, and, in certain cases, a federal district court judge deciding detention issues in habeas corpus proceedings. In this article, I propose the introduction of a new decisionmaker in the immigration detention system: the criminal court judge. This proposal is a JRAD redux – instead of a judicial recommendation against deportation (“JRAD”), as previously existed in immigration law, it is a judicial recommendation against immigration detention (“JRAID”).

Immigration scholars have advocated for the return of some version of the JRAD legislation that was revoked in 1990. This article is the first to carve out detention as the question on which to seek the criminal court judge’s opinion. In making such a recommendation, this proposal seeks to give a legislative acknowledgment to the reality that immigration detention is punishment. It places the detention decision with a judge who is closer in place and time to any criminal allegations, which play an outsized role in many immigration detention decisions. It gives the detention decision to the judge with more expertise in deciding what is frequently the dispositive issue in an immigration bond hearing – dangerousness. The proposal also grants immigration detainees access to certain procedural protections and norms of the criminal justice process, which are more in line with basic liberty principles that should apply to immigration detention as well. These include an independent judge, court-appointed counsel, the right to have a judge consider alternatives to detention, and a government-borne burden of proof. Finally, it allows immigration detainees to benefit from bail reforms of the criminal justice system that should apply given the parallel liberty interests in the criminal and immigration systems, and promotes efficiency in both systems.

IE