Restoring the Law in Immigration Detention Centers

Scholar urges courts to play a bigger role in overseeing civil detention facilities.

Over 20 individuals died while in U.S. Immigration and Customs Enforcement (ICE) custody last year—the highest death toll the agency has recorded in 20 years. These facilities are underregulated, according to a recent article by Alina Das.

Das, a professor at the New York University School of Law, argues that U.S. immigration facilities have fallen through the cracks of the law due to the judicial branch’s misreading of congressional intent and conferring authority over detention conditions to the executive branch.

She contends that the judiciary’s deference to the executive branch has allowed punitive and inhumane conditions to persist in what is supposed to be a civil, nonpunitive system of confinement as opposed to the necessarily punitive system of criminal confinement.

Only two provisions of the leading federal law on immigration address detention conditions. The first directs the Attorney General to provide “appropriate” places of detention, and the second authorizes state and federal cooperation for “acceptable conditions of confinement.”

Das argues that, contrary to Congress’s intent, courts have misread these provisions as conferring power rather than limiting it.

Das cites early congressional debates over federalizing immigration detention, in which lawmakers justified taking control from the states running detention facilities to standardize and improve facilities such as Ellis Island, which had been criticized by congress members for corruption and unsanitary conditions.

Even when lawmakers prohibited the entry of Chinese immigrants, lawmakers debated how to confine them humanely, Das explains. She observes that this limited humanitarian impulse, however inconsistently applied, reveals that Congress envisioned a civil, non-punitive detention to bind the executive branch.

Yet courts have misapplied Congress’s intent through decisions that expand, not constrain, executive discretion in detention centers, Das argues. She warns that judicial deference to the executive branch elevates evidentiary burdens on detainees and excuses agencies from following their own rules.

Das argues that courts have built constitutional doctrines that protect government discretion rather than detainee rights. Because prison is punishment, courts assess the rights of prisoners under the Eighth Amendment’s protection against cruel and unusual punishment using the “deliberate indifference” test, which asks whether officers have disregarded their actual knowledge of a substantial risk of serious harm. Das explains that pre-trial detention and the civil detention of immigrants, however, are regulatory measures that call for the assessment of detainees’ rights under the Fifth and Fourteenth Amendments, which protect fundamental rights from government interference.

Differentiating between regulatory and punitive detention, a federal appellate court in Bell v. Wolfish held that the test for substantive due process claims by detainees turns on whether their conditions amount to punishment. If they do, those conditions are unconstitutional.

Although the Bell “punishment” test and the “deliberate indifference” test are meant to govern two distinct forms of detention—one regulatory and one punitive—Das observes that many judges conflate the two tests. She notes that, by doing so, courts require immigration detainees to prove an officer’s intent to punish them, rather than pointing to the punitive nature of their conditions—a far higher evidentiary bar. As a result, judicial deference to executive immigration officials erodes detainees’ ability to vindicate their fundamental rights, Das explains.

Das adds that this deference is reinforced by a judge-made constitutional doctrine that requires courts to yield to executive agencies in immigration matters. During the COVID-19 pandemic, a deferential pattern surfaced in major constitutional cases.

For example, in one case, a federal district court ordered the release of medically vulnerable detainees, reasoning that ICE could use remote monitoring instead of physical custody. A federal appellate court reversed, emphasizing executive authority over detention operations.

Das rejects this reasoning, arguing that deference to executive control improperly shields punitive conditions from judicial scrutiny and undermines the Bell framework’s focus on the detainee’s treatment rather than the government’s intent.

Agency regulations similarly disappoint Das, who finds that courts’ treatment of agency standards leaves civil detainees with few enforceable protections. ICE’s National Detention Standards outline requirements for food, medical care, and safety, but Das argues ICE fails to comply.

In another instance during the pandemic, detainees at a Georgia facility invoked the Accardi doctrine—which requires agencies to follow their own rules—to compel compliance with confinement standards. In another case, however, a federal appellate court ruled that ICE’s standards were voluntary and thus unenforceable. At the same time, the court reasoned that the mere existence of those standards showed humanitarian intent, shielding officials from deliberate indifference claims. After this decision, three people at that facility died from COVID-19 complications.

Das asks: If constitutional protections are weakened by courts’ misreading of Congress’s intent, and detention agencies’ own standards are treated as both unenforceable and offering immunity for officials, what is left to regulate civil detention?

She argues that this oversight vacuum represents lawlessness. At bottom, she makes a simple and urgent appeal: If the alternative is regulatory anarchy, judicial oversight is the only answer.

Das argues that courts can realign detention law by applying the “civil detention interest,” a term she coins to refer to Congress’s recurring effort to ensure humane, nonpunitive conditions, in detention centers.

Judges should adopt an objective reasonableness test—determining the appropriateness of the conditions without considering intent—instead of the deliberate indifference standard, Das contends. She advocates for shifting the burden to the government to justify detention conditions when evidence shows that ICE facilities violate their own rules.

Das maintains that the purpose of Immigration and Nationality Act is to constrain executive authority, not to expand it, further warranting shifting the burden to executive agencies.

Das argues that courts should apply the Accardi doctrine to bind ICE to its own rules, citing congressional oversight systems that assume their enforceability. Das hopes, through this lens, that courts can enforce detainees’ substantive rights.

Das insists that until legislative reforms occur, courts must at least enforce existing standards so that civil detention remains true to its name.