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Rethinking Pre-removal Immigration Detention in the US: Lessons from Europe and Proposals for Reform

August 6, 2012

via the Global Detention Project:

In July 2012, Refugee Survey Quarterly released an advanced-access online version of this forthcoming article by Christina Fialho, a former research intern at the Global Detention Project and founder of the California-based Community Initiatives for Visiting Immigrants in Confinement (CIVIC), a national network of immigration detention visitation programmes in the United States. The article examines the legality of lengthy detention of non-citizens held in pre-removal immigration detention in the United States, while presenting a comparative analysis of the European Union and four of its Member States. The article is available here .

Abstract: Relentless advocacy and powerful reporting have resulted in a growing outcry against the United States immigration detention system. Nevertheless, the system has experienced a dramatic growth in the last decade, affecting families and communities all over the country. Inspired by United States and international legal theory, this article critically examines the legality of lengthy detention of non-citizens held in pre-removal immigration detention in the United States, while presenting a comparative analysis of the European Union and four of its Member States. Following the introduction, the article begins with an examination of the United States’ Supreme Court’s developing understanding of the Due Process Clause of the Fifth Amendment to the United States’ Constitution in relation to claims brought by non-citizens. The article also discusses two recent United States’ Supreme Court cases – Zadvydas v. Davis andDemore v. Kim – and how lower courts have interpreted them. Next, the article addresses the European Union’s Return Directive, relevant international human rights standards, and particular laws in France, Austria, Portugal, and Greece that place time limits on immigration detention. The article concludes with three recommendations to decrease the amount of time non-citizens spend in administrative immigration detention in the United States.

  1. Full Text (HTML)
  2. Full Text (PDF)

Christina Fialho is the Co-Founder/Executive Director of Community Initiatives for Visiting Immigrants in Confinement (CIVIC), a national network of immigration detention visitation programmes in the United States. She recently obtained her Juris Doctor from Santa Clara University School of Law. The author first acknowledges Professor Vincent Chetail, Graduate Institute of International and Development Studies (Geneva), and Michael Flynn, Lead Researcher of the Global Detention Project (Programme for the Study of Global Migration), for encouraging her to pursue scholarship on immigration detention. Second, the author thanks Santa Clara University Law Professors Evangeline Abriel and Pratheepan Gulasekaram for their helpful comments on prior drafts. Last, but far from least, the author thanks her husband, J.P. Rose, for his endless support.

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