Indiana Law Journal

Document Type


Publication Date

Winter 2016

Publication Citation

92 Indiana Law Journal 157 (2016)


Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice but has received scarce attention. Furthermore, the public debate on mass incarceration, which could meaningfully inform the discussion, generally ig-nores the reality of expansive pretrial detention of migrants who could be released.

This Article takes up the task of critiquing the role and functioning of the immigration custody determination process, in part by joining together the conversations taking place in the immigration and criminal pretrial realms. In this Article, I assert that the immigration custody determination process fails to preserve and protect the constitutional presumption of liberty applicable to all persons facing detention that is not imposed as punishment after a criminal convic-tion. The process results in automatic detention without meaningful individualized consideration or review. Furthermore, it adopts elements from the criminal pretrial system that are ill suited to the immigration setting while failing to incorporate les-sons learned in the criminal justice setting. Important considerations in the criminal justice context, such as the inadvisability of emphasizing monetary bond, do not make their way into the immigration custody determination process, with negative results for liberty.

Given these realities, the Article both proposes normative changes to the immi-gration custody determination process and calls for additional research in order to rationalize the process. These reforms would realign the system with the limited pur-poses of immigration detention in order to protect liberty and avoid the significant human and societal costs associated with detaining individuals who may safely be released.