Peripheral Detention, Transfer, and Access to the Courts

Abstract

In the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail. Federal immigration officials’ use of peripheral detention and transfer significantly affects immigrants’ access to the courts and their ability to raise detention challenges. Lurking beneath these issues lies a seemingly technical Supreme Court decision relied on by the government to seek dismissal of habeas actions filed by immigrant petitioners who have been ferried to faraway jails and prisons. In Rumsfeld v. Padilla, the Supreme Court held that the “default rule” in a habeas action challenging present physical confinement is that it must be brought in a petitioner’s “district of confinement” and that a petitioner can only name a single respondent: their “immediate custodian.” However, the history and development of immigration detention and of the habeas statute offer important insights into present debates about the primacy of Padilla in the context of transfer. A mining of these histories unravels the foundational premises on which Padilla relied and encourages us to question mechanical rules that silo immigrant habeas actions in faraway fora, away from evidence, witnesses, community, counsel, and the events giving rise to the detentions themselves.