Trump’s Mass-Detention Campaign
For those in Donald Trump’s orbit, great power often comes with great dispensability. Take Kristi Noem, who, as the head of the Department of Homeland Security, was in charge of the President’s top domestic priority of carrying out mass deportations, until she wasn’t. She became the first Cabinet secretary to be fired in Trump’s second term earlier this month, when he announced that he would replace her with Markwayne Mullin, an Oklahoma senator and a former mixed-martial-arts fighter. Noem, who’d been willing to do virtually anything in the role to boost her standing, was a product of the White House agenda, never a shaper of it. Stephen Miller is the architect of Trump’s immigration policies, and there’s little reason to think that Noem’s ouster will change Miller’s approach. It may even serve to embolden it, by giving him fresh cover. The department has temporarily paused large-scale arrest operations in the wake of a national outcry over abuses in Minnesota, and it is in the midst of a partial shutdown owing to opposition from congressional Democrats. The Administration’s bigger ambitions show no signs of flagging, however. In fact, they are leading toward a new humanitarian and legal crisis.
D.H.S. is now detaining some seventy thousand people in jails across the country, more than at any other point since the department was founded, in 2002. Twenty-three immigrants have already died in custody in the current fiscal year, putting it on pace to surpass the previous one, which had the highest number of deaths in immigration detention in decades. Since the start of Trump’s second term, the Administration has opened new facilities, repurposed others closed by previous Administrations, and converted temporary holding cells at federal buildings in cities such as Los Angeles and New York into spaces for longer-term detention.
Overcrowding, abuse, and neglect have made conditions far worse, and basic agency oversight has been gutted. The government has also detained at least four thousand children, sending many of them to a notoriously grim facility in South Texas called Dilley. A legal settlement in place since the late nineteen-nineties is supposed to bar the government from keeping minors in immigration custody for more than twenty days, but ICE has routinely flouted that rule. “Since I got to this Center all you will feel is sadness and mostly depression,” a fourteen-year-old girl from Honduras, who has lived in New York for seven years, told ProPublica; by then, she’d been in custody for forty-five days while waiting to be deported.
The largest detention site in the country, holding three thousand people, is a tent camp called East Montana, on a military base in El Paso. It was put up in less than two months, but started housing people two weeks after construction began. “Dust comes in through holes in the vents,” a detainee said in a sworn declaration to the A.C.L.U. A confidential ICE report, obtained by the Washington Post, showed more than sixty code violations in fifty days, including inadequate medical care and an absence of phones, which made it impossible for detainees, eighty per cent of whom have no criminal records, to speak with lawyers or family members. Three people died at the facility in a six-week period this winter, including a fifty-five-year-old Cuban man named Geraldo Lunas Campos, who the government claimed had been “in distress.” (After an El Paso County medical examiner ruled his death a homicide, ICE tried to expedite the deportation of witnesses who had observed an altercation between Lunas Campos and a group of guards.) There have been outbreaks of tuberculosis and measles at the site, and ICE officers have used the dangerously subpar conditions to pressure detainees to sign papers authorizing their deportation.
Last summer, the Republican-controlled Congress gave D.H.S. forty-five billion dollars to build more jails. The appropriation, which came as part of the President’s domestic-spending bill, has kept ICE flush with cash during the shutdown. The Administration has used the money, in part, to begin to create a network of bigger facilities, investing thirty-eight billion dollars to buy up large warehouses across the country and retrofit them. One of them, near Camp East Montana, in a small city called Socorro, is expected to hold eighty-five hundred people. So is another, in Social Circle, Georgia, which, according to the Times, would be “larger than any single jail or prison building in America.”
A major reason that so many immigrants are being locked up is a government policy to deny them bond. Last July, the acting head of ICE, Todd Lyons, issued a memo in which he claimed, in a radical and dubious reinterpretation of a twenty-nine-year-old statute, that the agency can automatically detain people who are in the country unlawfully and keep them in detention while they fight their cases. Ordinarily, unless a detained person had very recently entered the U.S., he could post bond if an immigration judge found that he didn’t pose a threat to public safety or represent a flight risk. This was the policy during the previous five Administrations, including during Trump’s first term.
But early last year Trump shrank the size of the Board of Immigration Appeals, the top appellate body overseeing the immigration courts, which are run out of the Department of Justice. Two months after the Lyons memo, the board issued a ruling instructing immigration judges to deny bond to anyone in detention with a legal case pending who had at some point entered the U.S. without inspection. The result has been a flood of habeas-corpus petitions filed in federal courts—more than fifteen thousand in the past two months alone. Most of the people submitting these requests have no criminal record, and many have lived in the U.S. for decades.
The question of whether the Administration’s bond policy is lawful will almost certainly reach the Supreme Court, but in the meantime hundreds of federal judges have taken issue with it. Frequently, they have given explicit orders for the government to release people from custody. The Administration has responded by attacking those judges—some of whom were appointed by Republicans—as “activist” and “rogue” jurists. At this point, the federal government is regularly ignoring or slow-walking judges’ orders.
In January, D.H.S. launched an arrest campaign in West Virginia, called Operation Country Roads, which was largely eclipsed by the situation in Minnesota. Drivers were targeted on state roadways, then held for extended periods without criminal charges. A federal judge wrote late last month that armed agents in unmarked cars who did not have warrants were “seizing persons for civil immigration violations and imprisoning them.” He added that the practice was “deliberate” in its “elimination of every structural feature that distinguishes constitutional authority from raw force.” Such warnings should be impossible to ignore. ♦