Immigration E-Carceration: A Faustian Bargain

A new wave of federal court litigation has required immigration judges to consider alternatives to immigration detention in bond hearings. Although alternatives to detention can take many forms, the most common is electronic monitoring. Immigration detainees and their advocates now find themselves asking to trade the physical walls of jail for virtual walls, begging for a different type of punishment and control. Electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive.

Its use also facilitates replacing a regime of over-detention with one of over-supervision and becomes the means by which immigration enforcement authorities surveil immigrant communities. It has become a Faustian bargain—should a detainee remain in jail or request these virtual walls? The Supreme Court’s immigration detention doctrine has set up this tradeoff by succumbing to the plenary power’s defenders who believe that noncitizens in removal proceedings have no right to freedom. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities.

Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal legal system, this “middle ground” ceded too much ground. This Article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides. The Article is also the first to expose a trend in the immigration context, in which the diminished rights that come with the status of a final order of removal have negatively impacted the rights of those who are pretrial.

These trends indicate that electronic monitoring will likely continue, unchecked by the judiciary, in the immigration context. It is thus necessary for the executive branch to not repeat the mistakes of the criminal legal system by substituting virtual walls for real ones.