Excerpted From: Mary Holper, JRAD Redux: Judicial Recommendation Against Immigration Detention, 91 George Washington Law Review 561 (June, 2023) (382 Footnotes) (Full Document)


MaryHolperThere 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. This Article proposes 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Immigration scholars have advocated for the return of some version of the JRAD legislation that was revoked in 1990.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 Article's 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.

Now is the moment to consider such a legislative proposal because President Biden must deliver on his promise to reverse course on President Trump's anti-immigrant agenda. During the Trump Administration, the number of persons in immigration detention reached an all-time daily high of 55,654 in 2019. At the same time, average lengths of immigration detention have risen, with thousands of immigration detainees spending one year or more in immigration detention while fighting deportation. Under the watch of several presidential administrations, the United States created the largest immigration detention system in the world.

The daily population of detainees decreased because of the COVID-19 pandemic, dropping to 13,529 in early 2021. The Biden Administration's initial days in office saw ICE announcing interim guidance on immigration enforcement, setting forth priorities on whom to detain and deport, and abandoning President Trump's “priority-free” immigration enforcement regime. As the Biden Administration allows detention numbers to rise to prepandemic levels, the JRAID presents a solution that takes the decision out of the hands of immigration actors in some cases, giving it instead to a criminal court judge who presides over any criminal charges.

Now is also the right moment because immigration judges, who review ICE officers' detention decisions in bond hearings, are suffering significant critique because they are not truly independent adjudicators. They are employees of the Department of Justice and answer to the Attorney General, the nation's top law enforcement officer, who has an immigration enforcement agenda. So far, the Biden Administration has not prioritized immigration court reform, despite numerous calls to do so. While his administration appointed federal court judges with diverse professional backgrounds, including those who worked as public defenders, the first immigration judges taking the bench under his watch were Trump-era picks whose immigration experience, if any, involved working for ICE. Until meaningful immigration court reform happens-- which is not foreseeable, given the unanswered calls for such reform for over four decades JRAID presents an alternative solution. It is one way to ensure that liberty decisions are in the hands of a criminal court judge instead of an “imitation judge.”

Part I of this Article describes the immigration detention process as it currently exists in order to explain the role of various executive branch decision makers in the process. This Part also outlines many of the flaws in the current immigration detention system. Part II explains the operation of the original JRAD, including its introduction into and repeal from immigration law. Part III outlines the proposal for a JRAID and explores the normative arguments both for and against the JRAID. Part IV concludes the Article.

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There is no better time than now to curb the thirst for detention that has dominated immigration enforcement policy. The numbers of detainees reached a historic low as a result of the COVID-19 pandemic. Before ICE begins simply repopulating its jails at pre-pandemic levels, the Biden Administration has an opportunity to seriously consider legislative proposals that can decrease the detention population, while still meeting the goals of protecting the community and preventing flight. Many have sought proposals to reform immigration law that bypass Congress, assuming that any proposed legislation to ameliorate the harsh consequences of the immigration system is dead on arrival. This Article's proposal, while perhaps overly optimistic in its expectation that Congress will cure the excesses of the bloated immigration detention system, also recognizes that the JRAID proposal can become part of broader nationwide efforts at decarceration or bail reform in the criminal justice system. The proposal simply shifts the locus of the initial decision to the criminal court judge for an entire category of cases when the issue to be decided is as important as a noncitizen's liberty.

Associate Dean for Experiential Learning, Associate Clinical Professor, Boston College Law School.