Taking Liberty Decisions Away from “Imitation” Judges
Mary Holper
Justice Black warned in 1952 about the dangers of giving immigration police and prosecutors the authority to jail human beings with very little involvement by the judiciary. Today’s immigration detention machine illustrates Justice Black’s fears: U.S. Department of Homeland Security (“DHS”) agents have both arrested 182,869 people in a single year and decided whether those individuals will be released or remain incarcerated for the remainder of their removal proceedings. For those entitled to immigration judge review, the judge works for the Department of Justice (“DOJ”) under the supervision of the Attorney General, the nation’s top prosecutor. Immigration judges’ lack of independence has long been a subject of critique, leading some to refer to themselves as “‘U.S. imitation judges.’” In sum, when the DHS police arrest a person, only a prosecutor reviews that decision. Most of these crucial decisions about a person’s liberty occur without any review by an Article III judge.
In this Article, I propose that Congress, in recognition that immigration detention is punishment, strip imitation judges of their authority to review decisions about physical liberty. Such decisions should only be entrusted to a federal magistrate judge, with review by an Article III judge. The procedures are already in place elsewhere; Congress need look no further than the Bail Reform Act, which applies when a person is held while awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. I argue that these decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit the judiciary’s role. Yet such review has happened for only a subset of detainees—those who are savvy enough to file a habeas corpus petition and lucky enough (or rich enough) to have habeas counsel, and those for whom the federal court reaches the merits of the custody challenge before the deportation case concludes (which moots the petition). The work of these lower federal courts has been laudable, but a better solution that reaches every immigration detainee is necessary.