*2.1. The Detention Machine*

The U.S. Department of Justice (DOJ) and the Department of Homeland Security (DHS) share jurisdiction over immigration detention. The DOJ essentially manages the operation of DHS, including the judicial review of immigration matters (excluding detention). Within the DOJ, the Executive Office for Immigration Review is responsible for immigration adjudication. It includes three units: (1) the Office of the Chief Immigration Judge (which comprises a number of immigration courts throughout the U.S.); (2) the Board of Immigration Appeals (BIA) (which hears appeals from the immigration courts); and (3) the Office of the Chief Administrative Hearing Officer (which deals exclusively with cases relating to the employment of migrants without the right to reside in the U.S.). Decisions of the BIA can be appealed to the federal courts, though their review powers are very limited (Stefanelli 2020, pp. 74–75). If a person wants to be released from detention, he or she must apply for habeas corpus at a federal district court.<sup>11</sup>

Within DHS, there are two immigration departments: Customs and Border Protection (CBP) to enforce immigration law at the borders of the country, and Immigration and Customs Enforcement (ICE), which enforces immigration law within the United States and manages immigration detention. DHS has the power to detain noncitizens in a number of circumstances, including (1) detention pending a decision on removal from the U.S., (2) detention pending removal after it has been ordered, (3) detention pending a decision on entry at the borders, and (4) detention pending a decision on asylum.<sup>12</sup> Whether someone is detained largely depends on whether the immigration authorities believe that the person's release would pose a risk of harm to the United States or the public, or a risk of flight (i.e., to avoid prosecution by immigration authorities for violations of the law). Noncitizens who have committed certain qualifying crimes while in the U.S., or those who are deportable on grounds of terrorism, must be detained pending a decision on removal.<sup>13</sup> For most other noncitizens, risk is determined on a case-by-case basis using an automated risk assessment tool that assigns a public safety and flight risk score based on DHS enforcement priorities. However, the algorithm has been criticized as being unduly weighted in favor of detention (Noferi and Koulish 2014; Koulish 2016).

If a person is detained, he or she will be housed in one of ICE's 134 detention facilities, primarily located in major cities across the U.S.<sup>14</sup> These facilities come in many shapes and sizes, and they house adults and children—sometimes together in special family residential centers.<sup>15</sup> Some are run by state or federal authorities, while others are privately owned and/or operated by for-profit companies such as the GEO Group or CoreCivic (Ryo and Peacock 2018; Kennedy 2020).<sup>16</sup> Some are wholly dedicated to housing immigration detainees, while others (typically prisons that house both those convicted under criminal law and those detained under immigration powers) will include people convicted of criminal activity. In 2009, Congress issued what has become known as the "bed mandate" for detention centers. Under that mandate, ICE is required to maintain 34,000 beds in detention centers on a daily basis. In other words, immigration detention is subject to a statutory quota (Sinha 2016).
