Peripheral Detention, Transfer, and Access to the Courts

Jessica Rofé* March, 2024

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.

Introduction

In June 2004, the Supreme Court issued its decision in Rumsfeld v. Padilla,¹ a post-9/11 national security case challenging the president’s authority to detain U.S. citizen José Padilla in military custody on U.S. soil by classifying him as an “enemy combatant.”² The Court ruled on what at first glance was a “technical issue,”³ holding that Padilla filed his habeas petition in the wrong court. Because Padilla was being held in a military brig in South Carolina, he should have filed his petition there, in his “district of confinement.”⁴ Further, he should have named his “immediate custodian”—normally the warden of the jail, but in this case, the navy brig commander—as respondent.⁵ The Court found that the Southern District of New York, which had issued the material witness warrant leading to Padilla’s arrest and where Padilla had filed his habeas petition, did not have jurisdiction over the brig commander.⁶ Accordingly, it dismissed Padilla’s habeas petition without prejudice.⁷

The Court’s decision in Padilla did not capture the public’s attention, in large part because it was issued on the same day as two others: Hamdi v. Rumsfeld⁸ and Rasul v. Bush.⁹ Hailed as victories by civil liberties advocates, the decisions in Hamdi and Rasul rejected the executive’s claims of military necessity to deprive individuals of their access to the courts and due process rights. Yet, Padilla’s seemingly technical ruling was in fact a fraught issue on the immigration stage. When Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA) in 1996, it vastly expanded the criminal grounds for deportation—many of which triggered mandatory detention without bond—and limited judicial review. As a result, many immigrants, including long-time residents, were subject to arrest, detention, and potential deportation.¹⁰ In tandem, the government began ramping up enforcement. As more and more immigrants were swept into immigration custody, many were transferred to isolated detention facilities, where they received pro forma hearings and were quickly ordered to be deported. Those immigrants who filed habeas petitions had to contend with the question at the heart of Padilla: Where was the proper forum to bring their habeas actions? Was it where they had been living for years; where they had built families; where they pursued ongoing immigration proceedings; where they had been arrested and initially placed into immigration custody? Or, was it where they were physically confined at the behest of immigration authorities? Moreover, who should they name as respondent? Was it the attorney general,¹¹ the secretary of the Department of Homeland Security, the immigration field office director, the warden of the jail where they were detained, or some combination? A circuit split emerged¹² that Padilla declined to resolve in the immigration context.¹³

Nearly twenty years later, the issue of the proper forum in a habeas action challenging immigration detention has returned to the fore. Once arrested by Immigration and Customs Enforcement (ICE) officers, many immigrants are transferred hundreds, if not thousands, of miles away from home, counsel, witnesses, evidence, loved ones, community, and the ICE field office or immigration court presiding over their cases. They are held in facilities pursuant to intergovernmental service agreements (IGSAs) with local and state governments, U.S. Marshall Service riders, or contracts with largely private facility operators,¹⁴ which are predominantly staffed by personnel with no connection to the immigration system.

The remoteness of detention, its largely contractual nature, and the frequency of transfers pose significant questions about which courts can hear immigrant petitioners’ detention challenges. Immigrants who seek release from detention by filing habeas petitions in their home districts are met with government arguments to dismiss or transfer on grounds that Padilla’s “default rule” controls: that petitioners challenging immigration detention can only file habeas actions in the “district of confinement,” and that they can only name their “immediate custodian”—the warden of the jail—as respondent.¹⁵ The government often prevails.¹⁶ As a result, habeas petitioners in immigration detention find their petitions outright dismissed, or they are forced to litigate their petitions far from the tools and community necessary to launch a viable detention challenge, often in courts that lack connections to the cases at hand. The Court’s mechanical rule, laid on top of an increasingly expansive and fluid carceral system, impedes immigrants’ access to the courts and their attempts to seek freedom from imprisonment. It also undermines confidence in the administration of justice because it prevents public monitoring by affected community members, which courts have found to be “an essential feature of democratic control.”¹⁷

Since the nascent years of immigration law and policy, the U.S. government has employed peripheral detention—detention in oft-remote localities, distant from the political communities dedicated to enforcing justice and accountability for its members—as a means of deporting so-called “undesirable” immigrants. Often conducted in openly racialized and xenophobic terms, peripheral detention impedes access to the courts. Now no longer episodic, peripheral detention is an entrenched feature of the immigration system, which has grown its enforcement arm to include interior policing, and which disparately affects poor and minoritized immigrant communities. Transfers now serve as a primary mechanism to control the growing detained population. Professor A. Naomi Paik explains that where “inclusion in a political community stands as a precondition for rights . . . to have meaning,” those extricated from that community through the prison camp “do not have the essential ‘right to have rights.’”¹⁸ Seemingly technical decisions that promise a mechanical and value-neutral outcome, like Padilla, reinforce this rightlessness by depriving immigrant petitioners of access to the courts best suited to adjudicate their liberty.

The adverse access-to-justice implications require a second look at the Padilla decision and the underlying rationales of the habeas statute it interpreted. In passing the Habeas Act of 1867 in the early years of Reconstruction, Congress sought to expand access to federal court review while ensuring that a petition was heard by a court with a connection to the case.¹⁹ Contrary jurisprudence in the immigration context is both inconsistent with the habeas statute and its legislative history and anachronistic considering the current detention and transfer regime.

Numerous scholars have critiqued the impact of transfers on immigrants.²⁰ This Article adds to that scholarship by unearthing how the current immigration transfer regime problematizes jurisprudence around where a case should be heard, specifically in the context of immigration habeas actions. In Part I, I describe how the government has historically exercised its power to isolate minoritized immigrants as a tool of exclusion, from Chinese exclusion to the more recent interdiction and detention of Haitian asylum seekers. In Part II, I describe the present-day immigration detention system and situate current immigrant detention and transfer policies, which isolate minoritized immigrants and limit their access to the courts, as an extension of this history. In Part III, I analyze the debate in federal courts over the proper venue for challenges to detention following transfer, critiquing application of the Padilla decision to the immigration detention context. I mine the Reconstruction Era origins of the statutory language on which courts rely, which evince concerns sounding largely in venue and demonstrate Congress’s intent to radically expand access to habeas relief, not limit it. I present a theory for rejecting Padilla’s default rule in the immigration context and, instead, for embracing traditional venue factors.²¹

I. The Racialized Geography of U.S. Immigration Detention

On June 28, 2004, the Supreme Court issued its decision in Rumsfeld v. Padilla, a habeas action challenging U.S. citizen José Padilla’s detention in military custody at a navy brig in South Carolina. Padilla was arrested in Chicago two years earlier on a material witness warrant, relating to a grand jury investigation into the September 11th attacks, in the Southern District of New York.²² He was held in federal criminal custody in New York for one month before President Bush designated him an “enemy combatant” and ordered him transferred to Department of Defense custody in South Carolina.²³

The court in the Southern District of New York immediately vacated his warrant, thereby terminating the Department of Justice’s custody of Padilla.²⁴ Subsequent to his transfer and two days after the New York-issued warrant had been vacated, Padilla filed a habeas petition in the Southern District alleging that his military detention violated the Constitution.²⁵ The petition named the president, the secretary of defense, and the navy brig’s commander as respondents. The government moved to dismiss Padilla’s petition for want of jurisdiction, arguing that the only proper respondent in Padilla’s habeas action was the commander of the navy brig where Padilla was then detained. The government further argued that the court in the Southern District had no jurisdiction over the commander, nor could it issue a writ of habeas corpus outside of its “territorial jurisdiction.” The district court denied the government’s motion, as did the U.S. Court of Appeals for the Second Circuit. The government petitioned for writ of certiorari.²⁶

In a 5–4 decision written by Chief Justice Rehnquist, in which Justice Kennedy concurred, the Court dismissed Padilla’s habeas action without prejudice to future filing.²⁷ The Court held that “the default rule is that the proper respondent is the warden of the facility where the prisoner is being held”²⁸ and that “the traditional rule has always been that the Great Writ is ‘issuable only in the district of confinement.’”²⁹ In support of its holding, the Court cited to 28 U.S.C. § 2241(a), which provides that federal court judges may grant writs of habeas corpus “within their respective jurisdictions.”³⁰ The majority stated that its decision—“derived from the terms of the habeas statute”³¹—would prevent forum shopping by habeas petitioners and district courts with simultaneous jurisdiction over a petition and track consistently with the concerns of the Congress that passed the Habeas Act 137 years prior.³² Notably, the Court was silent regarding how its holding might apply in the immigration context. It noted in a footnote that its earlier decision in Ahrens v. Clark³³ “left open” the question of whether the attorney general is a proper respondent to a habeas petition filed by an immigrant detained pending deportation, or whether the immediate custodian rule applied, but “decline[d] to resolve it.”³⁴

Despite the Court’s careful avoidance of the immigration habeas context in Padilla, government lawyers regularly cite Padilla when seeking dismissal of habeas actions filed by immigrants in detention. More often than not, courts apply Padilla’s “default rule.”³⁵ However, federal courts that apply Padilla’s holding in a strict and inflexible manner that depends solely on the location of the petitioner elide the unique contours of immigration detention, including the federal government’s use—both historically and today—of peripheral detention and transfer to cut off access to the courts.

As many scholars have explained, federal immigration authorities use detention to exclude and control “undesirable” immigrants in the U.S.—with particular emphasis on minoritized racial and ethnic groups.³⁶ One undertheorized feature of this detention power is how the location of detention deepens subordination by limiting marginalized groups’ access to justice. In this Part, I trace the history of federal immigration authorities’ use of peripheral detention as a tool for racialized social control. Once run by states and localities, immigration detention grew in parallel with federal immigration law and echoed its targets during three significant periods of detention expansion: first, Chinese and other Asian immigrants and persons deemed “undesirable”; then, as the nation solidified its borders, Mexican migrants; and later, following the abolition of racial quotas in immigration law, the arrival of Haitian asylum seekers. Immigration detention functioned to jettison groups of immigrants to the periphery, creating what scholars Jenna Loyd and Alison Mountz term “contingency space”³⁷ in geographically remote locations, in an attempt to forcibly disappear immigrants, deprive them of community support, and inhibit access to the courts and due process rights.

A. The Period of Chinese Exclusion and Detentions at McNeil and Angel Islands

While early American history is characterized by some as reflecting an “open door” policy with respect to immigration,³⁸ this policy shifted in the nineteenth century. In 1819, the federal government began to keep track of immigration,³⁹ and in 1875, it passed its first federal law regulating immigration.⁴⁰ The gradual closing of the door to immigrants was rooted in Anglo-American anti-Chinese sentiment in western states, as manifest destiny, the Gold Rush, and railroads brought Anglo-Americans and Chinese residents into proximity. While Chinese immigrants represented only a small fraction of immigrants during this period,⁴¹ they were nonetheless targets of racial hostility and violence. Anti-Chinese sentiment materialized in state legislation “broadly designed to consolidate Anglo-American power in the West” through voter disenfranchisement, bans on owning land, and bans on testifying or serving on a jury.⁴² Chinese residents were not the only targets. Restrictions were enforced against Black and Indigenous people, together with the Chinese, entrenching racial hierarchy and Anglo-American dominance.⁴³

Not all Anglo-Americans, however, expressed anti-Chinese fervor. Many individuals with interests in labor, international trade, and Christianity supported immigration from China; others, scarred by the racial animus that fueled the Civil War, promoted an antiracist immigration agenda.⁴⁴ These sentiments were reflected in the U.S. government’s adoption of the Burlingame Treaty with China in 1868.⁴⁵ The Treaty permitted Chinese and American individuals to immigrate to each other’s countries and required that visitors and residents “enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation.”⁴⁶ Notably, however, the Burlingame Treaty expressly did not “confer naturalization” on Chinese citizens in the U.S. or vice versa.⁴⁷

Anti-Chinese forces quickly responded to the Burlingame Treaty. Settlers lobbied Congress for restrictionist immigration policies. Their lobbying efforts culminated in the passage of the 1882 Chinese Exclusion Act, which prohibited Chinese laborers from entering the United States for a period of ten years,⁴⁸ later extended by the Geary Act of 1892.⁴⁹ In addition, vigilantes forcibly purged Chinese residents from western towns through brutal violence.⁵⁰

After passage of the Chinese Exclusion Act in 1882, the U.S. government began ramping up immigration detention in earnest. It incarcerated Chinese immigrants on steamships in San Francisco Bay pending inspection and admission.⁵¹ And it locked up Chinese immigrants who sought clandestine entry across the Canadian border at a penitentiary on McNeil Island, two-and-a-half miles off the coast of Washington State near Tacoma.⁵² In both instances, the U.S. government forced Chinese immigrants to the periphery, reflecting a national political agenda of exclusion.

While the penitentiary at McNeil Island opened its doors in 1875, U.S. officials did not begin sending large numbers of Chinese immigrants there until the mid-1880s, when they ramped up enforcement of the Chinese Exclusion Act. The Act did not criminalize presence in the U.S. in and of itself. Federal district courts, however, routinely sentenced Chinese immigrants found to be unlawfully present in the U.S. with six months of hard labor, often at McNeil Island.⁵³ Federal immigration detention at McNeil Island coincided with anti-Chinese violence, which hardened racial boundaries. Hardened boundaries signaled the improbability of peaceful coexistence in diverse communities in the interior and platformed exclusion as a solution to white terror.⁵⁴

Further south, in San Francisco, detention of immigrants at the port was moved from steamships to a “detention shed,” which became notorious for chronic overcrowding and unsanitary conditions. Many Chinese immigrants detained in the shed escaped; others planned revolt.⁵⁵ Congress ultimately agreed to fund a detention center at Angel Island, prompting protests from Chinese community leaders due to the difficulty for witnesses to travel there.⁵⁶ Witnesses were crucial to demonstrate that an individual was exempt from the exclusion laws.⁵⁷ The concerns expressed by Chinese community leaders about isolation, distance, and impediments to accessing witnesses, evidence, and justice formed the very rationale for siting detention on the island: Hart Hyatt North, the San Francisco commissioner of immigration, made clear that Angel Island was chosen precisely because the island would be “the most effective means of keeping a watchful eye over the newly arriving Chinese. They would be separated from friends and family who might try to coach them on how to pass the interrogations, something that was common to the ‘wily Chinee [sic].’”⁵⁸ North further noted that the island was “ideal” because it was detached from the mainland, protecting Americans from contagion and danger and preventing escape.⁵⁹ The immigration station at Angel Island opened for detention on January 21, 1910, amidst protests from Chinese community members.⁶⁰

Not everyone ended up on Angel Island, however. Ship passengers were filtered by race, nationality, and immigrant and economic status. Some, mainly in first-class but sometimes in second-class, were quickly examined by immigration officials between quarantine and the wharf, so they could disembark immediately.⁶¹ These individuals were largely white, wealthy U.S. citizens and European travelers.⁶² The remaining second- and third-class and steerage passengers were escorted onto a ferry to Angel Island; they were subjected to family separation, invasive health examinations, lengthy interrogations, and unsanitary conditions.⁶³ The ferry was racially segregated, just as the island was, with white passengers on the upper deck and nonwhite passengers below.⁶⁴ Race and nationality largely determined a person’s length of detention on the Island. From 1913 to 1919, empirical data shows that approximately 70 percent of passengers arriving to San Francisco were detained at Angel Island, and nearly 60 percent of Chinese passengers were detained for more than three days.⁶⁵ This detention rate starkly contrasts Ellis Island’s rate, “where only 10 percent of all arrivals were detained for legal reasons and another 10 percent were detained for medical treatment.”⁶⁶ Empirical data further shows that Chinese and Japanese passengers were detained longer than all other non-Asians. Specifically, 76 percent of Chinese passengers were detained, 19.4 percent of whom were detained for longer than two weeks; 89.6 percent of Japanese passengers were detained during the same period, but normally for a shorter duration.⁶⁷

Largely a port of entry for Asian immigrants, Angel Island was characterized by immigration policies designed to exclude.⁶⁸ In addition to being detained for longer periods, Asian passengers detained on the island were subject to disparate treatment based on race. For example, in 1909, concessionaires were allowed to spend fourteen cents per meal for Asian passengers detained on the island, but fifteen cents for European passengers.⁶⁹ Further, detained Chinese passengers were not permitted visitors of any sort before their cases were settled, while others were provided specific opportunities to see friends, family, and attorneys.⁷⁰ Women and individuals detained from Europe were also permitted to go on walks outside the detention center and visit family; Chinese men were not.⁷¹ Unlike its counterpart on the East Coast, Angel Island was not designed to admit immigrants to American shores for purposes of assimilation and naturalization.⁷²

Angel Island not only functioned to prevent entry but also played a central role in the deportation of individuals arrested in the interior, pursuant to newly minted immigration laws and policies that targeted Asian immigrants, sex workers, individuals likely to become a “public charge,” those with criminal convictions, and those with radical politics.⁷³

In this context of growing exclusion and detention, Chinese immigrants and community members resisted, raising legal challenges to U.S. law and policy and sometimes circumventing the law altogether. Many of these legal challenges were successful in the courts, thwarting nativists’ intentions to construct an American identity around ideas of racial purity. Yet, in response to one such challenge, the Supreme Court enshrined civil immigration detention into the fabric of American jurisprudence.

Wong Wing, Lee Poy, Lee You Tong, and Chan Wah Dong were arrested in Detroit on July 15, 1892, two months after the passage of the Geary Act.⁷⁴ They were subsequently held to be in the country unlawfully, ordered deported, and sentenced to sixty days of hard labor.⁷⁵ The four men challenged the Geary Act and its attendant criminal penalties. Through counsel, they asserted that the Geary Act violated the Fifth, Sixth, and Thirteenth Amendments by subjecting petitioners to hard labor—a form of punishment and involuntary servitude—without criminal trial.⁷⁶ The four men’s cases were consolidated;⁷⁷ their challenge took over three years to percolate through the judicial system before arriving at the Supreme Court in 1896.⁷⁸ On May 18, 1896, the same day the Court decided Plessy v. Ferguson, a decision that sanctioned de jure segregation and stood for nearly sixty years,⁷⁹ the Court also issued its decision in Wong Wing v. United States. The Court observed that while Chinese exclusion was lawful, the hard labor provision was not necessary to deportation, stating: “But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused.”⁸⁰ The Court further affirmed that constitutional protections under the Fifth and Sixth Amendments extend to “all persons within the territory of the United States,” citizen and noncitizen alike.⁸¹

Yet, while Wong Wing is notable for protecting certain constitutional rights of non-U.S. citizens,⁸² for present purposes, it is most notable for what it permits. In addition to upholding much of the Geary Act and affirming Congress’s power to control immigration,⁸³ the Court, in dicta, sanctioned immigration detention or temporary confinement “as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens.”⁸⁴

B. The Criminalization of Migration and Creation of Carceral Spaces for Mexican Migrants Along the Southwest Border

During the period of Chinese exclusion, immigration detention emerged as a means of geographically isolating and asserting control over immigrants deemed racially undesirable. This phenomenon continued in the southwestern borderlands, where immigration from Mexico threatened nativists’ hopes of a white-dominant American nationality. However, rather than constructing a civil detention system, legislation passed in the 1920s enabled the creation of carceral spaces along the border by criminalizing migration.

On May 26, 1924, President Calvin Coolidge signed into law the Immigration Act of 1924. The Act permanently entrenched a quota system for migration first implemented in 1921 in an effort to keep the nation’s “racial strains” majority Anglo-Saxon.⁸⁵ This quota system exempted Mexico and other countries in the Western Hemisphere, largely to support the labor interests of industry and agribusiness.⁸⁶ However, the 1924 Act signaled a new approach to immigration control that would ultimately be wielded against immigrants from Mexico, leading to mass detentions and deportations along the border.

Prior to 1924, Congress created statutes of limitation for deportation. For example, the Immigration Act of 1907 provided that an immigrant who entered the United States in violation of the law be taken into custody and deported within three years of entry into the United States.⁸⁷ This provision was extended but not eliminated in 1917, when Congress enacted a five-year statute of limitations.⁸⁸ The Immigration Act of 1924 upended this scheme by eliminating the statute of limitation and providing that deportation could occur “at any time” after entry for any person entering after July 1, 1924 without a valid visa or inspection.⁸⁹ While Mexican immigrants were not subject to quotas, they were still required to obtain visas upon entry and adhere to strict entry requirements. As a result, many Mexican immigrants, migrating across the porous and often-ambiguous U.S.-Mexico border without inspection, became vulnerable to the new scheme.

At the same time, nativists interested in cultivating a Euro-American identity—often foiled in their endeavor to exclude non-European (specifically Mexican) immigrants by western industrialists and agriculturalists seeking sources of labor—reframed the immigration debate as one of “controlling unauthorized Mexican immigration rather than capping authorized migration.”⁹⁰ Highlighting the number of unauthorized border crossings made by Mexican immigrants each year, Congressman Coleman Livingston Blease of South Carolina, a known segregationist, proposed to criminalize unlawful entry.⁹¹ His proposal ultimately passed without objection in 1929.⁹² The “Undesirable Aliens Act of 1929” made unlawful entry a misdemeanor, punishable by imprisonment of up to one year or a fine of up to $1,000 or both, and made a second unlawful entry punishable by imprisonment of up to two years or a fine of up to $1,000 or both.⁹³ As historian Mae Ngai contends, these new immigration laws “rearticulated the U.S.-Mexico border as a cultural and racial boundary, as a creator of illegal immigration.”⁹⁴

The repercussions of the criminalization of migration under the 1929 Act on Mexican immigrants were virtually immediate. Historian Kelly Lytle Hernández documents that after only one year, U.S. attorneys had prosecuted over 7,000 cases and, by year ten, had prosecuted more than 44,000 cases, with a conviction rate that never fell below 93 percent.⁹⁵ These prosecutions ballooned the federal prison population overwhelmingly with Mexican immigrants, who comprised no less than 84.6 percent of all imprisoned immigrants.⁹⁶ As more immigrants faced prosecution and detention, Congress responded with the construction of prisons along the U.S.-Mexico border.⁹⁷

While Blease’s law was ultimately repealed, its principles remain. The provisions were recodified in 8 U.S.C. § 1325⁹⁸ and 8 U.S.C. § 1326⁹⁹ through passage of the Immigration and Nationality Act of 1952 (The McCarran-Walter Act). Although the laws lay dormant for much of the twentieth century,¹⁰⁰ in the past twenty years these laws have resurfaced and continue to target Mexican and Latine immigrants¹⁰¹ by criminalizing migration, separating families, and concentrating detention along the southwest border.¹⁰² Now, prosecutions for migration-related offenses are the second most numerous prosecutions on the federal docket¹⁰³ and are concentrated in the southwest border districts.¹⁰⁴ Individuals charged for migration-related offenses almost never go to trial.¹⁰⁵ They are often prosecuted through fast-track, “zero-tolerance” criminal proceedings. Defendants are rarely appointed defense counsel until their court date, have little time to consult with an attorney to understand the charges or consequences of a guilty plea, and appear before the federal court shackled and in an assembly line of up to eighty people.¹⁰⁶ Most plead guilty, often without understanding their constitutional rights and in violation of Federal Rule of Criminal Procedure 11.¹⁰⁷ Yet, the data suggests that individuals prosecuted under these statutes “are among the most likely to receive a prison sentence despite having the lowest mandatory minimums and final offense levels.”¹⁰⁸ The effect is that these criminalization provisions—rooted as they are in the racist and eugenicist ideology of the “Tribal Twenties”¹⁰⁹—have expanded the “legal and material conditions for deportability,”¹¹⁰ isolating and controlling Mexican and Latine immigrants along the Southwest border through the use of assembly-line justice and carceral spaces.

The immigrants subject to these provisions often have deep ties to the United States. The average age of an individual prosecuted for reentry is thirty-six, whereas the average age at initial entry is seventeen, suggesting that individuals reenter over a prolonged period.¹¹¹ Most individuals prosecuted under the reentry provisions have relatives—other than children—in the United States,¹¹² and virtually half (49.5 percent) have at least one child living in the United States.¹¹³ Moreover, nearly three quarters have worked in the United States for more than one year.¹¹⁴ Federal law and policy requires Mexican families “to choose between permanent separation and making an unauthorized crossing to be together with their loved ones.”¹¹⁵ The decision carries the possibility of ensnarement in the federal criminal legal system, prosecution, and detention, all with minimal process and all by design.

C. The Reinvention of Immigration Detention and the Creation of “Contingency Spaces” for Haitian Immigrants

Two years after the Supreme Court validated detention pending deportation in Carlson v. Landon,¹¹⁶ the former Immigration and Naturalization Service (INS)—under the Eisenhower Administration and Attorney General Herbert Brownell, Jr.’s leadership—began a wind-down of immigration detention, resulting in its near abolition.¹¹⁷ In 1954, INS officials adopted a policy of “parole,” permitting the vast majority of immigrants to be released into community during the pendency of their immigration proceedings.¹¹⁸ In a 1956 statement before the Subcommittee on Immigration of the Committee on the Judiciary of the U.S. Senate, Attorney General Brownell reaffirmed this policy, stating,

A practice which had grown up over the years was the indiscriminate detention of aliens who were awaiting decisions as to admissibility or deportability. While detention of some was undoubtedly necessary, our studies showed that the majority could be released under reasonable supervision without harm to the public safety or security.¹¹⁹

This antidetention frame—espoused in the courts¹²⁰ and in the mainstream, including in later years by individuals affiliated with the Nixon-created National Advisory Commission on Criminal Justice Standards—would last approximately a quarter century.¹²¹ The frame ended in the twilight of the civil rights movement with the arrival of Haitian immigrants fleeing the Duvalier regime who sought asylum in the United States. In response to Haitian immigrants and other nonwhite and poor immigrants from Central America and the Caribbean, the U.S. returned to detention as a method of geographic isolation, intentionally distancing immigrants from community and counsel to thwart access to the administrative process and judicial intervention.

After he ascended to power in Haiti in 1957, François “Papa Doc” Duvalier instituted an autocratic regime that stifled dissent, enforced by a mercenary guard known as the “Tonton Macoute.” In response, between 1950 and 1960, many of the island-nation’s elite and middle class left Haiti for Europe, North America, and the newly independent nations of West Africa.¹²² Those who entered the United States often entered on visas and were largely ignored by immigration officials, even when statuses lapsed. In the 1970s, however, more Haitians began fleeing the country, a significant number of whom could not afford visas or airfare. They fled, instead, by boat, arriving onto U.S. shores in Florida. In contrast to immigrants seeking safe haven from Communist regimes, who were largely paroled into the United States and afforded an opportunity to apply for asylum, Haitian asylum seekers were cast as economic migrants, subjected to a policy of detention, and issued blanket denials of their asylum claims.¹²³ The stark difference between the treatment of Haitians and other immigrant groups led to outcry from community members and those subject to the U.S. government’s targeted detention policies. One group of Haitian asylum seekers jailed at Collier County Stockade Detention Center in Florida, identifying themselves as the “Haitian Refugees at Immokalee,” penned a letter to the INS district director, stating:

We left our native country and came here to solicit the political asylum, because of the injustices we encountered with the brutal police corps of Duvalier, the tontons-macoutes [sic]. But as you know, we have been put in jail upon our arrival in the United States. Now that we are retained here without clear knowledge of our crime, the jailers have forced us to do all kinds of heavy jobs . . . . When we try to protest, we have been punched and beaten with sticks or they even put us in those small cells (dungeon), where we cannot move.¹²⁴

Ultimately, through organizing by directly impacted Haitians and religious and civil rights organizations, and strategic legal challenges to the government’s Haitian detention policy, Haitians won a policy of release from detention and a hearing before an immigration judge, where they could be represented by an attorney.¹²⁵

Soon after, in response to protests from immigration officials regarding the government’s liberalized stance, rampant hostility and racism towards Haitian refugees, and draconian Bahamian immigration policies targeting Haitians for roundup and deportation—which U.S. government officials inferred would lead to the U.S. becoming the natural destination for those fleeing Haiti—the U.S. government instituted the Haitian Program. The Haitian Program reinstated a policy of detention for Haitian asylum seekers, denied Haitian asylum seekers access to work permits, and expedited asylum hearings for speedy denial and deportation.¹²⁶ The government under the Carter Administration also began circumventing judicial interventions designed to uphold the due process rights of Haitian asylum seekers by detaining them outside the jurisdiction of the Southern District of Florida at Fort Allen in Puerto Rico.¹²⁷ Moreover, it aimed to consolidate detention and processing away from the mainland, where the incarceration of asylum seekers was a hot-button issue, and where organizers, activists, and elected officials decried U.S. violations of human rights and international law principles.¹²⁸

The Carter Administration never realized its aims of centralizing refugee processing outside of the forty-eight contiguous states. But the Reagan Administration would carry the torch forward, enacting stricter enforcement policies to detain and deter immigrants in response to migrations from the Caribbean and Latin America. The Administration began subjecting asylum seekers to mandatory detention and interdicting Haitians on the high seas in the early 1980s.¹²⁹ Mandatory detention, aimed first at Haitian asylum seekers beginning in May 1981,¹³⁰ was extended to all asylum seekers the following year, enabling the Reagan Administration to state that detention “is done even-handedly with aliens of all countries.”¹³¹ Interdiction, for its part, permitted the U.S. Coast Guard to halt more than 180,000 migrants attempting to reach the United States by boat, 55 percent of whom were from Haiti.¹³² Both of these programs reflected the Administration’s strategy of using detention as a deterrent,¹³³ coinciding with a new “war on crime” used by presidents and their administrations to strip courts of discretion, expand policing, and build up prisons.¹³⁴

As the Reagan Administration embraced civil immigration detention, hundreds of Haitian asylum seekers were detained in overcrowded facilities in states as far away as Texas, New York, and Missouri, isolated from family and community, in depressed conditions, and unable to communicate with authorities or medical personnel.¹³⁵ Those detained organized hunger strikes and other uprisings in response to their incarceration; those on the outside raised legal challenges. Yet, as Carl Lindskoog argues, resistance threw obstacles in the way of the government’s detention program but also “led to the development of a more resilient legal, political, and economic rationale for its existence.”¹³⁶ Jenna Loyd and Allison Mountz theorize that, because the Reagan Administration advanced a rhetoric that detention drove enforcement, the only way to enable the federal government to fulfill its legal duties was through the expansion of detention space.¹³⁷ The government then engaged in a lengthy and ongoing process of siting immigration prisons and jails. This process was informed by logistical concerns, including the existence of transportation infrastructure, as well as community responses to the construction or expansion of immigration detention.¹³⁸ The new detention centers were “contingency spaces” available in the event of mass migrations¹³⁹—they were sold politically and rhetorically as a furtherance of the agency’s “law enforcement” mission, which enabled the government to collapse border logic with interior enforcement.¹⁴⁰ By creating contingency spaces, the government continued its embrace of remote locations to isolate immigrants of color away from community and resistance.

By April 1986, the federal government had opened its first high-capacity immigration detention center in Oakdale, Louisiana, roughly 200 miles from the nearest population hubs in Houston and New Orleans.¹⁴¹ Geographically isolated, Oakdale became a transfer location, where people from as far away as California and New York were transported for deportation. Oakdale, then, “epitomized the production of remoteness: designed to be far away from attorneys, and thereby to ‘increase the speed and number of deportations.’”¹⁴²

Under the Bush Administration, the government forged ahead with its detention blueprint. It targeted asylum seekers from Central America and built infrastructure for mandatory detention in the Lower Rio Grande Valley. It continued the interdiction program established by President Reagan, summarily returning Haitian refugees fleeing a military coup regime rather than screening them for a credible fear of persecution.¹⁴³ It transferred other Haitian refugees to the U.S. naval base at Guantanamo Bay, Cuba, “where they were detained behind razor-barbed wire in makeshift military camps without due process rights.”¹⁴⁴ These policies served to limit the rights of those in detention by stripping them of procedural safeguards, cutting off their ability to communicate with the outside world, and impeding their access to legal counsel and judicial review.¹⁴⁵

This patchwork of detention would have lasting ramifications on immigrants’ and communities’ abilities to challenge detention through law and organizing.¹⁴⁶ Thus, from its earliest instances, immigration detention has been characterized by its desire to geographically isolate and exclude—to eliminate nonwhite immigrants’ channels of communication and connection to community and, ultimately, to the courts and due process.

II. The Rise of the Modern Immigration Detention System and the Role of Transfers as a Tool of Social Control

As noted in Part I, the rise of immigration detention has coincided with the concentration of immigration jails and prisons in remote locations.¹⁴⁷ It has also coincided with an increase in transfers, facilitated by a transportation infrastructure that connects ICE’s patchwork system of jails and prisons. Transfer supports ICE’s ability to coordinate bed space and effectuate deportations. It also serves to divorce immigrants facing deportation from community supports integral to vindicating their due process rights, and from organizing efforts for release and abolition.¹⁴⁸

This Part documents the rise of the modern detention state, the federal government’s seemingly unfettered discretion to transfer immigrants in its custody to jails and prisons far from their homes and communities, and the attendant harms of transfer. What is perhaps more prominent in the modern detention state post-9/11—though not unique to it—is its ability to seize individuals who have long settled in the United States through interior enforcement. Enforcement, traditionally located “at the territorial margins of the state,” has ossified into a hybrid inward- and outward-looking mechanism of immigration control.¹⁴⁹ Individuals embedded in the social, cultural, and political fabric of communities are plucked from their homes and transferred—without notice to their attorney of record, their loved ones, or the community at large—hindering access to zealous representation and inside-outside organizing strategies that are essential to fighting for one’s liberty and bringing an end to immigration detention more generally.

A. The Rise of the Modern Detention State: Legislative Frameworks and the Growth of Detention

As detailed in Section I.A, the Supreme Court sanctioned immigration detention as “a constitutionally valid aspect of the deportation process” in dicta in Wong Wing.¹⁵⁰ It then affirmed its stance in Carlson v. Landon in 1952.¹⁵¹ Congress additionally provided for discretionary detention pending removal proceedings when it passed the Immigration and Nationality Act in 1952, which is now codified at 8 U.S.C. § 1226(a). Yet, despite the steady construction of the legal infrastructure for immigration detention, for decades the attorney general tended to exercise this discretion in favor of liberty during the pendency of an immigrant’s deportation proceedings. That presumption was narrowed in 1988, when Congress passed the first mandatory detention immigration law and created a small category of individuals whom the attorney general was required to take into custody without the possibility of release on bond or parole.¹⁵² This legislation reflected Congress’s renewed interest in targeting immigrants with criminal convictions, a phenomenon that paralleled harsh legislation at the federal and state levels increasing sentencing for minor offenses and sowed the seeds for today’s carceral infrastructure, which disproportionately targets people of color and the poor.

Congress’s interest would be long-lasting. In 1994, Congress amended the 1988 statute, increasing the number of immigrants subject to mandatory detention without the possibility of bond or parole. Then, in 1996, Congress enacted two laws—the Antiterrorism and Effective Death Penalty Act¹⁵³ (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act¹⁵⁴ (IIRIRA)—which made sweeping changes to the nation’s immigration laws, including through dramatic limitations on immigrants’ substantive rights¹⁵⁵ and, as relevant here, increased instances in which immigrants are subject to mandatory, no-bond detention. Together, these laws embedded a broad detention mandate into the immigration laws.

While Congress did not alter the discretionary detention statute through IIRIRA, the INS implemented new regulations, creating a presumption of detention and placing the burden on an arrested immigrant to demonstrate that their release would not pose a bail risk or danger.¹⁵⁶ The Board of Immigration Appeals quickly adopted this burden shift in the context of bond proceedings conducted by immigration judges.¹⁵⁷ These regulatory and procedural changes have subjected countless immigrants to detention—even in the midst of ongoing immigration proceedings—unless they can show to the satisfaction of an immigration judge that they merit release on bond.¹⁵⁸

The combined effect of these laws and policies has been an overall increase in immigration detention. In 1985, the INS went from detaining 2,000 in a given day to 6,600 in 1995.¹⁵⁹ By the turn of the twenty-first century, detention was growing steadily, with the largest increase occurring from 1997 to 1998, when the 1996 laws became enforceable.¹⁶⁰ And when the Supreme Court decided Rumsfeld v. Padilla in 2004, the average daily detention population was 22,812.¹⁶¹ But this was only the beginning.

Immigration detention has continued climbing steadily with congressional approval. In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act, which required the Department of Homeland Security (DHS) to increase detention bed space by a minimum of 8,000 beds in each of the fiscal years from 2006 to 2010.¹⁶² In 2009, Congress passed the DHS Appropriations Act of 2010, with language mandating that DHS maintain no fewer than 33,400 detention beds through September 30, 2010, and allocating $2,545,180,000 for detention and removal operations.¹⁶³ The bed mandate remained in effect for years, with detention numbers ranging from 30,000 to upwards of 40,000 during the Obama Administration.¹⁶⁴ During this same period, internal enforcement expanded through programs like Secure Communities, which linked local policing and immigration enforcement, funneling more people of color into the immigration detention system.¹⁶⁵

While the bed mandate ended during funding negotiations in May 2017,¹⁶⁶ detention numbers continued to rise under the Trump Administration, with DHS at times detaining upwards of 56,000 individuals per day¹⁶⁷ in a network of over 220 jails and prisons,¹⁶⁸ 40 of which were operationalized for immigration detention during the Trump presidency. The twenty largest of these facilities are located predominantly in the Southern states, with seven in Louisiana alone.¹⁶⁹ These jails and prisons are largely operated through contracts and agreements, with space in about 57 percent of these facilities obtained through intergovernmental service agreements (or IGSAs).¹⁷⁰ In recent years, ICE has managed to expand immigration detention through overspending; by exceeding its budget, the agency justifies later requests to Congress for budget increases, fueling expansion.¹⁷¹ Since 2004, ICE’s budget has more than doubled, from $3.7 billion to $8.3 billion, largely in aid of the agency’s detention capabilities.¹⁷²

B. The Role of Transfers Within the Modern Detention System

Although individuals are typically arrested close to where they reside, they are often transferred hundreds, if not thousands, of miles away from home, loved ones, and community. This is not a new phenomenon.¹⁷³ According to a study conducted by Human Rights Watch, in a twelve-year span from 1998 to 2010, of the 2,271,911 noncitizens in immigration detention, federal immigration officials transferred 1,159,568 of them (or 40 percent) at least one time.¹⁷⁴ Over 46 percent of individuals in immigration detention were transferred at least twice, 16.7 percent were transferred at least three times, and 3,400 individuals were transferred ten times or more.¹⁷⁵ Between 2004 and 2009, the number of transfers of immigrants in detention tripled. In 2004, ICE effectuated 124,899 transfers; in 2009, it conducted 405,544.¹⁷⁶ By 2015, about 54 percent of individuals in immigration detention experienced at least one transfer.¹⁷⁷ On average, an individual was transferred almost 400 miles away,¹⁷⁸ with a frequent transfer route between Pennsylvania and Texas that is over 1,500 miles.¹⁷⁹ Individuals subject to transfer spent, on average, three times longer in immigration detention than those who were not transferred.¹⁸⁰

ICE’s transfer data has grown opaque in recent years.¹⁸¹ However, both modeling and anecdotal evidence demonstrate that the practice continues unabated and is likely increasing.¹⁸² For example, in 2019, when ICE decided to recast Karnes County Residential Center—a private immigration prison outside of San Antonio, Texas run by the GEO Group—from a women’s detention center to a family detention center, 856 women were transferred from Karnes.¹⁸³ Women—many of whom had fled gender-based violence in their home countries—were transferred to jails and prisons in other parts of Texas, Mississippi, and Louisiana, their locations unknown to counsel and their court dates rescheduled or canceled, thereby prolonging detention.¹⁸⁴ In the midst of transfer, lawyers struggled to identify where to file bond requests. Women transferred to detention centers in Mississippi (where there is no immigration court) were forced to fight their cases via televideo before an immigration judge in New York State, represented by a lawyer in Texas.¹⁸⁵

As states and municipalities organize for the just closure of immigration jails and prisons,¹⁸⁶ ICE continues to double down in its commitment to transferring individuals hundreds, if not thousands, of miles away.¹⁸⁷ When Bergen County Jail in New Jersey—where most recent available data shows that over 86 percent of individuals in detention are from Latin America and the Caribbean¹⁸⁸—severed its contract with ICE in the wake of new legislation banning future ICE detention contracts in the state, the agency transferred those in detention to a federal prison 300 miles away in Batavia, New York.¹⁸⁹ When Illinois passed legislation requiring local officials to end their ICE contracts, some individuals detained in McHenry County Jail in Woodstock—where over 77 percent of individuals in detention are from Latin America and the Caribbean¹⁹⁰—and at the Jerome Combs Detention Center in Kankakee—where 83 percent of individuals in detention are from Latin America and the Caribbean¹⁹¹—were transferred to Indiana, Oklahoma, and Texas.¹⁹² And when advocates alleged racist and abusive treatment of individuals detained at Orange County Jail in New York¹⁹³—where over 80 percent of individuals in detention are from Latin America and the Caribbean¹⁹⁴—ICE transferred dozens of detained immigrants without warning to facilities throughout the country.¹⁹⁵ Sixty-one immigrants were transferred over 1,300 miles away to the Adams County Detention Center in Natchez, Mississippi, a facility the national American Civil Liberties Union and the ACLU of Mississippi asked President Biden to shut down in light of allegations of medical neglect, physical abuse, and indefinite detention.¹⁹⁶ The Orange County undersheriff stated publicly that his agency asked ICE to reduce the jail population in part because of “the amount of time the county law department ha[d] spent addressing complaints filed by advocates over the treatment of detainees.”¹⁹⁷

These transfers continue, despite their facilitation of the spread of infectious disease¹⁹⁸ and other implications on public health.¹⁹⁹ During the COVID-19 pandemic, for example, in a three-month period from April to June 2020 when COVID-19 cases were increasing exponentially in several states, immigration court data revealed at least 268 transfers between detention centers. Half of these transfers involved moving individuals from centers with known COVID-19 cases to centers with none, or from centers without any known cases to those with documented exposure.²⁰⁰ One of these early transfers caused a “super-spreader” event at a detention center in Farmville, Virginia. A transfer of seventy-four individuals from detention facilities in Florida and Arizona on June 2, 2020—more than half of whom tested positive for COVID-19—led to an outbreak, with at least 315 total cases.²⁰¹ Individuals being transferred to Krome Processing Center in Florida were not medically evaluated upon arrival, and attorneys of record were not notified of their transfer, even after it occurred.²⁰² In California, an attorney reported a client’s account of his transfer from Otay Mesa Detention Center²⁰³ to Adelanto: after sleeping eight to a cell at Otay Mesa, he was transferred by bus for an almost three-hour trip to Adelanto along with thirty other men, including two who were visibly sick and coughing. They were separated only after their arrival at Adelanto.²⁰⁴ The total number of transfers ICE has conducted in recent years is unknown.²⁰⁵ However, modeling conducted by the Vera Institute of Justice based on last-published transfer activity shows that across 500 simulations and by the end of a sixty-day period, “ICE would conduct a median cumulative 1,744 transfers of people with active COVID-19 cases to other detention facilities,” including repeat transfers of individuals across state lines and to different regions of the country.²⁰⁶ ICE continued these transfers, despite early warnings by its own contracted medical subject-matter experts that the extensive use of transfers of individuals (often without symptoms) through ICE’s network of immigration jails and prisons could “rapidly disseminate the virus throughout the entire system with devastating consequences to public health.”²⁰⁷ These experts stated that ICE’s undeterred reliance on detention—a congregate setting, where social distancing is “an oxymoron”—created a grave public health risk in light of detention centers’ reliance on local hospital systems.²⁰⁸

Take Yousef Kane,²⁰⁹ for example. In the winter of 2018, ICE officers arrested Mr. Kane at his home in front of his wife and U.S.-citizen children.²¹⁰ Mr. Kane, an asylum seeker from West Africa and a Bronx resident for nearly fifteen years, was processed at ICE’s New York field office in Manhattan. Officers took him to a jail in New Jersey for four days before transferring him to a detention center in Louisiana,²¹¹ over 1,000 miles away from his home, loved ones, faith community, and counsel.²¹²

Mr. Kane’s immigration lawyers filed a habeas petition and motion for temporary restraining order (TRO) in the Southern District of New York—which maintained jurisdiction over both ICE’s New York Headquarters and Mr. Kane’s home—requesting that the court halt any deportation and transfer.²¹³ The court granted the TRO.²¹⁴ Two days later, ICE nevertheless transferred Mr. Kane from Louisiana to Texas, Texas to Arizona, Arizona back to Louisiana, Louisiana to New York, and New York to New Jersey: five transfers in less than three weeks.²¹⁵ Then, ICE moved to dismiss or transfer Mr. Kane’s habeas petition to the Western District of Louisiana.²¹⁶ The agency argued that Mr. Kane was in Louisiana when the habeas was filed, and that for “core” challenges to present physical confinement, a habeas petitioner must name his warden as respondent and file his petition in the district in which he is confined.²¹⁷

ICE asserts that anyone in its custody is subject to transfer at any time and without notice. It cites to 8 U.S.C. § 1231(g)(1) as the source of its transfer authority. The subsection provides:

The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend . . . amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities . . . necessary for detention.²¹⁸

While the plain language of 8 U.S.C. § 1231(g)(1) contemplates the authority to site immigration jails and detention facilities, rather than to transfer individuals subject to immigration custody, ICE’s authority to perform the latter has been upheld by many courts.²¹⁹ ICE’s perception of its transfer authority is further reflected in its policies and detention standards, which emphasize that transfer decisions are made at the discretion of the ICE field office director or their designee and designed to be effectuated without notice or process.²²⁰ For example, Section 7.4 of ICE’s Performance-Based National Detention Standards (PBNDS), as revised in December 2016, which governs the transfer of individuals detained in ICE custody, does not require that individuals subject to transfer be contacted until “immediately prior to transport,”²²¹ nor does it require that the legal representative of record be notified until after transfer has occurred.²²² No provision directs ICE to contact loved ones, family members, or communities prior to transfer. Indeed, Section 7.4 expressly prohibits individuals subject to transfer from (1) learning of the specific plans and time schedules for transfer, (2) making or receiving telephone calls until they reach the destination facility, and (3) having contact with any other individual in immigration detention in the general population prior to reaching the destination.²²³ Individuals subject to transfer are not permitted to make a phone call until they are admitted to the receiving facility.²²⁴ These policies are expressly designed to shroud the agency’s detention and transfer decisions in secrecy, purportedly for “security” reasons.²²⁵

Even policies designed to limit transfers are riddled with carveouts for discretionary decisions that render the policies near-nullities. Policy 11022.1 on “Detainee Transfers” was expressly written to minimize transfers of immigrants in detention outside the area of responsibility of the field office director.²²⁶ However, it only establishes responsibilities and procedures for ICE staff and “does not govern contract staff,” who are referred to their respective vendor agreements.²²⁷ The policy provides that ICE supervisory immigration officers “will not” transfer an individual outside of the area of responsibility when there is documentary evidence of immediate family or an attorney of record in the area of responsibility, when there are pending or ongoing removal proceedings, or where an individual has been granted bond or has been scheduled for a bond hearing.²²⁸ A field office director or his or her designee, however, may effectuate a transfer when “deemed necessary.”²²⁹ Notably, a field office director may deem transfer necessary based on an individual’s “circumstances and risk factors,”²³⁰ categories so broad as to render the field office director’s discretion near-infinite.

The costs of transfer for individuals in detention, their loved ones, and their communities are immeasurable.²³¹ Individuals in detention often lose access to pro bono counsel, as distance makes representation difficult, if not impossible, and attorneys withdraw from cases.²³² Even where attorneys are able to remain on cases, the continuity of representation is disrupted. Attorneys are uninformed of transfer in advance and may learn of transfer well after it occurs.²³³ Moreover, representational difficulties abound due to: (1) prohibitively expensive phone fees and telephone access restrictions that make remote representation on a large scale untenable;²³⁴ (2) impediments to attorneys’ ability to conduct confidential assessments for relief, interview clients regarding traumatic facts relating to physical, sexual, and other violence, counsel clients as to their legal options, obtain signatures, and prepare clients to testify in court;²³⁵ (3) adverse impacts on attorneys’ abilities to support individuals in detention with cases beyond individual removal proceedings, including family court and child welfare proceedings,²³⁶ state court proceedings for conservatorships for individuals who are gravely disabled, and state court proceedings for ongoing criminal cases or postconviction relief;²³⁷ and (4) changes in circuit law that affect the viability of legal claims.²³⁸

Those unable to procure counsel prior to transfer are often transferred to localities where the ratio of attorneys to those in detention is low. For example, according to Human Rights Watch, the largest number of interstate transfers go to Louisiana, Mississippi, and Texas—states which collectively have the worst ratio of attorneys to individuals in detention.²³⁹ Moreover, transfers over hundreds of miles separate immigrants from evidence and witnesses crucial to adequately presenting their cases before immigration courts.²⁴⁰ Transfers further separate individuals from needed support from loved ones and community members. This separation takes a psychological toll on the individual detained and their surrounding community. And because individuals in detention are often transferred before they receive a bond hearing—where an immigration judge decides whether to continue an individual’s detention, in no small part based on levels of familial and community support—those subject to transfer are deprived of the ability to advocate for their release through the administrative process.²⁴¹

III. Transfers, Immigrants’ Access to the Courts, and the Case for Rethinking the “Immediate Custodian” and “District of Confinement” Rules in the Immigration Context

This Part turns to federal courts’ role in ensuring access to justice for immigrants challenging their detention in light of transfer. First, I describe how peripheral detentions and transfers impede immigrants’ ability to challenge their detention in federal court, and how Padilla’s sister rules exacerbate this impediment. Second, I problematize the Padilla Court’s reasoning, emphasizing the Reconstruction Era purpose of the civil habeas statue to expand access to habeas relief for all people. Finally, I argue that, considering the questionable—and arguably incorrect—foundations on which the Court relied in Padilla, the expansive intent of the Reconstruction Congress that passed the habeas statute, and the obsolescence of a territorial rule in the context of peripheral detention and transfer, courts should apply traditional venue principles in determining the proper forum to adjudicate an immigration habeas action that challenges present physical confinement.

A. Transfers, Access to the Courts, and Rumsfeld v. Padilla

ICE’s transfer decisions affect an individual’s ability to challenge the agency’s custodial authority in the federal courts through petitions for writ of habeas corpus.

Section 2241 of Title 28 of the U.S. Code provides that the federal courts may consider claims that an individual is “in custody in violation of the Constitution or law or treaties of the United States.”²⁴² Individuals in custody have used the writ in varied circumstances: to challenge Japanese internment,²⁴³ to express conscientious objection to the Vietnam War and challenge induction into the armed forces,²⁴⁴ to contest parole decisions,²⁴⁵ and to challenge extradition abroad.²⁴⁶ A writ of habeas corpus is also the vehicle through which individuals in immigration custody challenge their detention.²⁴⁷ Despite congressional attempts to curb immigrants’ access to federal courts through passage of IIRIRA,²⁴⁸ AEDPA,²⁴⁹ and the REAL ID Act of 2005,²⁵⁰ none of these purports to limit immigrants’ use of the writ of habeas corpus to challenge the legality of executive detention.²⁵¹

Transfer, however, has become a means of inhibiting immigrants’ access to the federal courts in detention challenges. As noted in Section II.B, ICE agents routinely arrest individuals for immigration detention and transfer them without notice to loved ones, community members, or counsel. When individuals challenge that detention through petitions for writ of habeas corpus in their home districts, they are met with motions to dismiss or transfer filed by the government. These motions routinely cite the Supreme Court’s Padilla decision and its rationale. First, they argue that Section 2241(a) contemplates a territorial limitation on the district court’s power: if an individual has been moved outside the territorial limits of the district court, no writ can follow. Second, they argue that the use of the definite article in reference to the custodian in Section 2243 implies that there can only be one proper respondent to a habeas action—a petitioner’s “immediate custodian”—who is, conveniently for the government, the warden of the jail or detention facility.

Argueta Anariba v. Director Hudson County Correctional Center provides a helpful example.²⁵² Angel Argueta Anariba, a father to two U.S. citizens who has lived in the United States for over twenty years,²⁵³ was detained for a seven-year period beginning in 2014 and subject to approximately fourteen transfers between five different ICE facilities in five different states, including Alabama, Louisiana, Mississippi, New Jersey, and New York.²⁵⁴ In March 2019, while he was detained in a New Jersey county jail, Argueta Anariba filed a habeas petition on the basis of prolonged detention—he had been detained for twenty-nine months since his last bond hearing—in the federal court for the District of New Jersey.²⁵⁵ After the habeas petition had been pending for seven months, the federal district court denied it on procedural grounds, without prejudice to future filing.²⁵⁶ Six months later, Argueta Anariba filed a motion to reopen the habeas petition, renewing his prolonged detention claims and additionally seeking release because his specific comorbidities placed him at risk of severe illness or death during the COVID-19 pandemic.²⁵⁷ The district court issued another procedural decision, this time denying the habeas petition based on a finding that the court lacked jurisdiction because Argueta Anariba had been transferred outside of the court’s jurisdiction to an ICE contract facility in Catahoula Parish, Louisiana.²⁵⁸ Argueta Anariba appealed.

On appeal, Argueta Anariba argued that transfer to Louisiana should not affect his ability to pursue his habeas petition in New Jersey. He noted the impracticalities of requiring a petitioner to file in the district of confinement, since the logic of that holding would have required him “to file at least three separate habeas petitions in three different courts in the past year as the statute authorizing his detention and physical location of detention change[d].”²⁵⁹ The government argued that the district court did not have jurisdiction over Argueta Anariba’s claims because Argueta Anariba was not detained in the District of New Jersey.²⁶⁰ It further argued that Argueta Anariba’s claims—that his detention was unreasonably prolonged, and that he was subject to conditions of confinement putting him at risk of severe illness or death during the COVID-19 pandemic—arose while he had been in custody in Louisiana.²⁶¹

At oral argument, Argueta Anariba’s counsel emphasized that a federal district court in Louisiana was not the proper forum, given that all briefing in the underlying habeas action occurred in the District of New Jersey, including the filing of evidence and documents under seal, and pro bono counsel was located in New Jersey.²⁶² The Third Circuit panel, however, viewed Argueta Anariba’s arguments with skepticism.²⁶³ It assumed that the sole respondent to the habeas action was the director of the county correctional facility in Louisiana, where Argueta Anariba was being held, and asserted that the federal district judge in New Jersey “can’t direct that person to do anything.”²⁶⁴ The panel further stated, “There’s no one in the [New Jersey] judge’s jurisdiction who he can direct to give the relief that you are seeking. So, as a practical matter, I’m trying to understand how this works,”²⁶⁵ adding, “the attorney general is typically not the proper defendant in an immigration habeas case. So, you don’t have anybody in New Jersey that can deal with Louisiana. The attorney general looks like it may not be the proper defendant. So, who is?”²⁶⁶

The Argueta Anariba panel’s questions invoked Padilla’s presumptions that there is a single respondent to an immigration habeas action, and that the respondent must be the equivalent of the warden of the jail where the petitioner is detained. The panel did not question whether the federal immigration officials who effectuated the transfers and determined the locus of detention were potential respondents.²⁶⁷ It quickly dismissed the attorney general as a potential respondent, despite the fact that individuals seeking release from immigration detention through habeas petitions are often granted a bail hearing conducted by the Executive Office of Immigration Review, a component of the Department of Justice, rather than immediate release.²⁶⁸ Nor did the panel entertain the possibility of the secretary of homeland security as a potential respondent, despite the secretary’s general detention authority.²⁶⁹

Argueta Anariba prevailed in his appeal. The Third Circuit panel found that his motion to reopen was properly construed as a Rule 60(b)(6) motion, which did not amount to a new habeas petition. Accordingly, the panel found that the New Jersey district court retained jurisdiction following Argueta Anariba’s transfer outside of the District of New Jersey because it had already obtained jurisdiction over his habeas petition, which named his “then-immediate custodian,” the director of the New Jersey county jail.²⁷⁰ But had Argueta Anariba filed a new habeas petition while detained in Louisiana—or in Alabama or Mississippi, for that matter—the Third Circuit panel made clear that under its interpretation of the law, the only proper forum would have been his district of confinement, and the only proper respondent the warden of the jail.²⁷¹ It would not have mattered that his residence, witnesses, records, attorneys, loved ones, and community were all in the Northeast. Venue principles would not have applied.²⁷²

The Third Circuit is not the only federal court confronted with this issue. Today, federal courts are increasingly tasked with addressing the proper forum in an immigration habeas action. Where a petitioner has been transferred between jails, the government regularly files motions to dismiss or transfer, insisting that Padilla’s immediate custodian/district of confinement sister rules be treated as absolute. This is nothing new. However, the Padilla decision, in tandem with the government’s detention authority and the increase in available jails and prisons for immigration detention, has effectively given the government a means of preventing a district court with the most salient connections to a case from administering an effective remedy. Federal courts, for their part, have taken disparate approaches to the issue of proper forum, most of them applying Padilla but others feeling obligated to distinguish Padilla and its application in the immigration context in order to adjudicate habeas petitions.

A look at three recent decisions in the same federal court exemplifies the different approaches to the question of proper forum. In Darboe v. Ahrendt, Darboe was arrested and detained by New York ICE officials and held in a New Jersey state penal institution.²⁷³ The government filed a motion to dismiss Darboe’s habeas action for lack of jurisdiction or, in the alternative, to transfer the case from the Southern District of New York to the District of New Jersey.²⁷⁴ The court agreed and transferred Darboe’s case.²⁷⁵ In its analysis, the district court found that it “must have jurisdiction over the petitioner’s custodian,”²⁷⁶ and under Padilla, the custodian in a “core challenge” to present physical confinement is “‘the warden of the facility where the prisoner is being held,’ and the writ is issuable only in ‘the district of confinement.’”²⁷⁷ The court rejected the petitioner’s argument that it was ICE’s New York City field office director who was the proper respondent because he was the individual with the power to “transport, transfer, or release [Darboe].”²⁷⁸ Instead, the court found that only the warden of the New Jersey jail where Darboe was detained was his “immediate physical custodian.”²⁷⁹ In so doing, the district court was able to ignore venue factors, which would have cut in Darboe’s favor given that he (1) resided in the Southern District of New York, (2) was represented by an attorney located in the Southern District of New York, (3) had removal proceedings in the Southern District of New York, and (4) was initially arrested and detained by ICE in the Southern District of New York.²⁸⁰

Contrast the Darboe court’s analysis with that of the court in Cruz v. Decker.²⁸¹ In Cruz, the government filed a motion to dismiss or transfer to the District of New Jersey, arguing that, under Padilla, the only proper respondent to Cruz’s habeas action was the warden of the New Jersey state penal institution where he was then detained.²⁸² The Cruz court disagreed, making clear that the question of proper forum in an immigration habeas action was one of venue, not subject-matter jurisdiction.²⁸³ The court then held that Cruz’s proper respondent was the ICE New York field office director because ICE, “whether solely or in conjunction with the warden, exercise[d] that control to an extent that satisfies the immediate custodian rule under Padilla.”²⁸⁴ Thus, the Cruz court adopted Padilla’s holding but rejected the district of confinement rule in favor of traditional venue considerations; it looked beyond the warden to determine the proper respondent in light of the unique contours of contract detention.

Finally, consider the court’s analysis in J.G. v. Decker,²⁸⁵ where petitioner, a fifty-nine-year-old lawful permanent resident of forty years, was held in prolonged detention in Goshen, New York and then abruptly transferred to Adams County Correctional Center in Natchez, Mississippi.²⁸⁶ J.G. filed a petition for writ of habeas corpus on the same day of his transfer.²⁸⁷ The court initially sua sponte transferred the petition to the Southern District of Mississippi, holding that, under Padilla, the warden of the Adams County Correctional Center was the proper respondent and the Southern District of New York did not have jurisdiction over them.²⁸⁸ However, it reconsidered its decision upon learning that J.G. had filed his petition at 12:21 AM., about two-and-a-half hours before ICE officers shackled him at 3:00 AM and put him in a van for transport to Mississippi.²⁸⁹ Finding that the petitioner was in custody in the Southern District of New York at the time of habeas filing, the court held that it had jurisdiction over the petition.²⁹⁰

So, how should courts analyze the question of proper forum when confronted with habeas challenges to physical confinement by petitioners in immigration detention? Before addressing this question, it bears returning to the Supreme Court’s analysis in Rumsfeld v. Padilla and its articulation of the “immediate custodian” and “district of confinement” rules.

B. The “Immediate Custodian” and “District of Confinement” Rules: A Look at the Supreme Court’s Underlying Rationale

When the Court was confronted with José Padilla’s habeas action, it articulated the question at issue as follows: “[D]id Padilla properly file his habeas petition in the Southern District of New York?”²⁹¹ This question sounds in venue, a question of the proper locality for the filing and adjudication of Padilla’s habeas action.²⁹² Yet, in order to answer the venue question, the Padilla court further inquired into “whether the Southern District ha[d] jurisdiction over Padilla’s habeas petition.”²⁹³ Thus, while the venue question animated the Court’s inquiry, the Court immediately signaled that it could not address the question of proper forum without grappling with jurisdictional issues. But what kind of jurisdiction? Although the Court did not do so expressly, it implicitly addressed questions of personal jurisdiction when it distilled its inquiry into two prongs: (1) “[W]ho is the proper respondent to that petition?” and (2) “does the Southern District have jurisdiction over him or her?”²⁹⁴ These questions reference the court’s ability “to render judgment in personam” and its “de facto power over the [respondent]’s person.”²⁹⁵

The “Immediate Custodian” Rule. Padilla had named several respondents to his habeas action: President George W. Bush, as commander-in-chief of the U.S. armed forces; Secretary of Defense Donald Rumsfeld; Attorney General John Ashcroft; and Naval Brig Commander Melanie A. Marr.²⁹⁶ It seems apparent that the Southern District would have had personal jurisdiction over some of these respondents. Yet, the Court quickly dismissed all but one—Commander Marr—finding that there could be but one proper respondent to a habeas action, the so-called “immediate custodian.”²⁹⁷

How did the Court get here? How did it determine that, despite the district court’s issuance of a material witness warrant for Padilla’s arrest and the president’s issuance of an order to the secretary of defense to name Padilla an enemy combatant, Commander Marr was the sole proper respondent to Padilla’s habeas petition?²⁹⁸ It reasoned that because the habeas statute in Sections 2242 and 2243 uses the singular article “the” in reference to the custodian, it must contemplate a single respondent.²⁹⁹ For example, Section 2242 instructs the petitioner to “name the person who has custody over [them].”³⁰⁰ Section 2243 reiterates that the writ or order to show cause “shall be directed to the person having custody of the person detained” and further requires that “[t]he person to whom the writ or order is directed shall make a return certifying the true cause of detention.”³⁰¹

The Court’s reasoning might seem simple enough, yet the Dictionary Act instructs us to the contrary. The Dictionary Act directs federal courts to apply certain grammatical rules in the course of statutory interpretation “unless the context indicates otherwise.”³⁰² One such grammatical rule is that, when reading the U.S. Code, “words importing the singular include and apply to several persons, parties, or things.”³⁰³ The Dictionary Act’s instruction suggests that multiple persons may be custodians and therefore, respondents to a habeas action under the habeas statute.

Yet, the Padilla Court never mentioned the Dictionary Act in its analysis. Instead, the Court looked to its 1885 decision in Wales v. Whitney, a case involving a habeas petition filed by a medical director and former navy surgeon general, who sought habeas relief from an order of court martial levied against him by the secretary of the navy.³⁰⁴ Wales v. Whitney is not a case about the proper respondent (or number of respondents) to a habeas action. Rather, it is a case about the requisite custody requirement. Finding that Wales was subject only to a “moral restraint” rather than “actual confinement,” the Court held that the order of arrest and court martial against him were insufficient restraints of liberty to warrant a habeas action.³⁰⁵ Wales v. Whitney was subsequently overturned, as the definition of “in custody” steadily expanded to its present terms.³⁰⁶

Despite the fact that the Court later overturned Wales’s holding and that Wales challenged something other than present physical confinement, the Padilla court relied on the case’s dicta to determine the proper respondent to a habeas action where physical restraint is at issue—what the Court terms a “core” habeas challenge.³⁰⁷ Quoting Wales, the Padilla court stated that the habeas provisions “contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.”³⁰⁸ While Wales provided no clear indication who the person with “the immediate custody” might be, the Padilla court concluded that it must be the warden or warden-equivalent of the facility where an individual is being held, rather than a “remote supervisory official” like the attorney general.³⁰⁹ How the Court reached this conclusion is unclear. Petitioner Wales challenged his court martial, not present physical custody.³¹⁰ The Court denied Wales’s petition on the basis that he did not meet the now-defunct physical restraint requirement, a result informed by the fact that the Court inferred Wales was using the writ to circumvent military justice in favor of a civil tribunal.³¹¹

Perhaps, as some have argued, the Padilla Court’s analysis turned on its understanding of the chain of command.³¹² In Padilla, Padilla’s “immediate custodian,” Commander Marr, was in the direct chain of command of the supervisory official with confining authority, the secretary of defense. Therefore, Commander Marr could, practically and legally, produce the prisoner’s body before the habeas court,³¹³ “that he may be liberated if no sufficient reason is shown to the contrary.”³¹⁴ But what about instances where the warden or warden-equivalent is outside the chain of command and has no power to address the true cause of detention? How does one rationalize the Court’s decision in the context of immigration detention, which as of 2021 counted 220 facilities, about half of which exist pursuant to intergovernmental service agreements with state or local governments or private contractors³¹⁵ whose officials cannot substantiate the cause of detention?

Nor is the Court’s singular, immediate custodian interpretation firmly rooted in the legislative history of the habeas statute. The Habeas Act of 1867 forms the basis of the general grant of habeas corpus jurisdiction in 28 U.S.C. § 2241 to the federal courts.³¹⁶ It is widely accepted that while the statutory language of the Act of 1867 has been amended in detail, its substance has not been.³¹⁷ A look at Chapter 28, Section 1 of the Act of 1867 evidences that the drafters did not conceive of a singular individual as responsive to the writ. For example, Section 28 provides:

if any person or persons to whom such writ of habeas corpus may be directed shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed to be guilty of a misdemeanor . . . .³¹⁸

This usage of the plural undermines claims that inclusion of the definite article in later versions of the statute shows Congress’s clear intent to identify a single respondent.³¹⁹ It bears questioning whether the immediate custodian rule was chosen by the Court because of its interpretation of the statute and its legislative history, or for some other reason. Suffice it to say that the Padilla Court’s decision to manacle the respondent to a petitioner’s physical jailer—with little consideration for the original text of the statute or the shifting nature of the carceral state and the rise of contractual detention—about-faced a longstanding effort by the court to imbue the writ with the “initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.”³²⁰

The District of Confinement Rule. The Padilla Court then went further to limit the reach of habeas when it articulated the “district of confinement” rule.³²¹ Turning to the second prong of its inquiry, the majority held that the “general” rule is where a habeas petitioner challenges present physical confinement, the writ is only issuable in the “district of confinement.”³²²

Here again, it bears unpacking the Court’s analysis. By its terms, 28 U.S.C. § 2241 provides that district courts may grant writs of habeas corpus “within their respective jurisdictions.”³²³ The issue the Court had to resolve is whether the term “respective jurisdictions” created a territorial limitation on a district court’s ability to issue the writ; whether it referenced the power of a district court to hear a case; or whether it served only to ensure that cases were brought before the right court—a question of proper forum or venue. Here, we are reminded that “jurisdiction . . . is a word of many, too many, meanings.”³²⁴ Thus unable to rely on pure textualism, the Court turned to legislative history to discern the meaning of ambiguous text. The Court stated that Congress added the clause “within their respective jurisdictions” to avoid a situation in which “every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.”³²⁵ It concluded that for petitions seeking release from physical confinement, the writ is only issuable in the “district of confinement.”³²⁶

However, the Court’s conclusion, couched in terms of legislative history, is insufficient. While the legislative history of the Habeas Act of 1867 itself is limited,³²⁷ the historical record clearly demonstrates the Reconstruction Congress’s consistent intent to enhance the powers of the federal courts.³²⁸

During the Civil War, enslaved Black Americans crossed Union lines in pursuit of freedom. Congress passed consecutive Confiscation Acts, which legally freed those enslaved by Rebels who were using them to assist Southern troops.³²⁹ As more and more Black people freed themselves in the chaos of war, the United States government “followed the footsteps of the [B]lack slave,” acknowledging that the Civil War was a war against slavery.³³⁰ On January 1, 1863, President Abraham Lincoln signed the Emancipation Proclamation, declaring that the enslaved people of all persons in rebellion were “thenceforward, and forever, free.”³³¹ Importantly, the Proclamation also provided that “such persons, of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.”³³² Of the Proclamation’s provisions, those around military service were considered some of the most radical and essential because they “breath[ed] life into the promise of emancipation” through the massive enlistment of Black people into the military.³³³

These actions, however, failed to provide Black Americans with habeas protections. Questions regarding the legal status of the formerly enslaved paralyzed Congress, such that when it passed the Habeas Corpus Indemnity Act of 1863, it only implicitly contemplated the individual liberties of the newly free.³³⁴ Instead, it sought protections for federal officials subject to prosecutions in Rebel jurisdictions, a precursor to the removal provisions that would ultimately form part of the Habeas Act of 1867.³³⁵

Then, on March 3, 1865, just before the War’s end, Congress passed a resolution “to encourage [e]nlistments and to provide the [e]fficiency of the military [f]orces of the United States.”³³⁶ The resolution provided that the wives and children of any person who had been or may have been enlisted in the U.S. Army or Navy would be “forever free.”³³⁷ It further conferred freedom on those who were living in slave states not in rebellion and therefore did not fall under the provisions of the Emancipation Proclamation.

On December 19, 1865, Republican Congressman Samuel Shellabarger of Ohio offered an enforcement measure for Congress’s March 3rd resolution, which was immediately agreed upon by the House:

Resolved, That the Committee on the Judiciary be directed to inquire and report to this House, as soon as practicable, by bill or otherwise, what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States under the joint resolution of Congress of March 3, 1865, and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery.³³⁸

On March 15, 1866, Congressman Shellabarger raised the issue of habeas in connection with federal removal legislation. The congressman asked what was to be done about “a very large class of similar cases,” wherein Union officers were subject to state court trials in regions still loyal to the Confederacy by virtue of acts committed in the line of duty.³³⁹ These federal officers would inevitably be convicted by recalcitrant state tribunals with anti-Union prejudices and therefore were compelled to flee the state.

Ultimately, Shellabarger’s concerns regarding emancipation and removal seem to have been woven together into the Habeas Corpus Act of 1867, which was reported out of the House of Representatives on July 25, 1866. In explaining the nature of the bill, Republican Congressman William Lawrence of Ohio summarized his colleague Shellabarger’s efforts, stating that the congressman sought legislation that would “enforce the liberty of all persons,” “enlarge the privilege of the writ of habeas corpus,” and “make the jurisdiction of the courts and judges of the United States coextensive with all the powers that can be conferred upon them.”³⁴⁰ He added, “It is a bill of the largest liberty, and does not . . . restrain the writ of habeas corpus at all.”³⁴¹ Thus, in its earliest iteration, the Habeas Act of 1867 was not intended for narrow constructions that would limit access to the federal courts; instead, Congress introduced the Act to enlarge the habeas remedy by enlarging the federal jurisdiction of the courts and judges of the United States.³⁴²

In the Senate, Republican Senator Lyman Trumbull of Illinois introduced the Habeas Act of 1867 by echoing Congressman Lawrence’s sentiments. Trumbull stated, “It is a bill in aid of the rights of the people.”³⁴³ Discussions of the bill remained quite limited. Nevertheless, Democratic Senator Reverdy Johnson of Maryland introduced the question that would spark debates about choice of forum for decades to come, and on which the Supreme Court would later hinge its decisions to limit federal court jurisdiction in Rumsfeld v. Padilla.

In a statement to the full Senate, Senator Johnson argued that the senators should examine the language of the bill because, as he saw it, “an application might be made to a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.”³⁴⁴ He stated further, “Any man who may be imprisoned in any part of the United States may be brought out by this writ issued by a district judge of the United States farthest from the place of imprisonment,” adding that this would be “exceedingly inconvenient, embarrassing, and expensive.”³⁴⁵

At the Senate’s next meeting, Senator Trumbull summarized Senator Johnson’s critique of the House bill, stating, “I do not think the bill is susceptible of that construction. I think the judges and courts would under the bill be confined to their respective jurisdictions.”³⁴⁶ It is no surprise that Senator Trumbull did not envision such a construction. At the time of the Senate’s debate, the notion that an individual subject to physical confinement could be transferred out of the territorial limits of a state was anathema to the “positive republican theory of crime” that had emerged in the early years of the Republic.³⁴⁷ Indeed, a central concern of the Framers of the Constitution was that federal court litigation would “carry me a thousand miles from home—from my family and business—to where, perhaps, it will be impossible for me to prove [my case].”³⁴⁸ Moreover, at the time, neither a federal prison system nor a federal immigration detention system existed,³⁴⁹ such that neither senator could have contemplated a federalized system of confinement and transfer.

Despite Senator Trumbull’s vocalized skepticism, he accommodated Senator Johnson’s concern that courts with no connection to a case should not have habeas power, stating:

I shall have no objection to amending [the Act] by inserting after the word ‘courts” in the fourth line of the first section the words “within their respective jurisdictions;” so that it would then read “that the several courts of the United States and the several justices and judges of such courts, within their respective jurisdictions,” &c.³⁵⁰

Senator Johnson agreed to Senator Trumbull’s amendment, and it was thereafter enacted.³⁵¹

The Reconstructionist Congress that passed the Act could not have contemplated a scenario in which a federal agency could arrest, detain, and transfer an individual through a patchwork network of jails and prisons, with the ability to carry them hundreds or thousands of miles away from home; that an agency could do so with no notice to the individual, their loved ones, or their counsel; and that it could do so while substantive proceedings were ongoing in another judicial forum. What is clear from a review of the legislative history is that an individual’s locus of confinement could not have had much meaning in the postbellum United States. The Reconstruction Congress’s focus was on providing a meaningful remedy in a court that had grounds for asserting jurisdiction. Therefore, an interpretation that the Reconstructionist Congress passed the Act intending to create strict territorial limits to accessing the writ is unsubstantiated.

Yet, despite this history, language from the Habeas Act of 1867 was cited by the Padilla Court to create a doctrine which ultimately curtails access to the writ by incentivizing transfer without notice or process—this legitimized a practice that in the colonial period was considered an act of banishment and punishment in and of itself and that was widely outlawed in many state constitutions as reminiscent of the harshness of the British crown.³⁵² Rather than allowing immigrant petitioners to seek redress from physical confinement in a federal district court with a connection to the substance of a case, the “district of confinement” rule ferries immigration custody disputes into forums that unfairly disadvantage immigrant petitioners by requiring that they litigate in locations far from the evidence and witnesses necessary to argue for their liberty.

The Reconstruction Congress’s focus was on providing a meaningful remedy in a court that had grounds for asserting jurisdiction.³⁵³ Therefore, an interpretation that the Congress that passed the Act intended to create strict territorial limits to accessing the writ is both unsubstantiated and anachronistic.

The Concurrence. Justice Kennedy, while joining the Padilla majority, wrote a “pivotal concurrence,”³⁵⁴ clarifying what is only implied in the majority opinion: the question of proper forum for a habeas action is one of personal jurisdiction or venue,³⁵⁵ not of subject-matter jurisdiction.³⁵⁶ He highlighted that it was clear these rules do not flow from questions of subject-matter jurisdiction, given that the Court has heard numerous cases on the merits “despite their noncompliance with either one or both of the rules.”³⁵⁷ Nevertheless, he concluded that in “the ordinary case,” the “immediate-custodian rule” should prevail,³⁵⁸ and that Padilla’s habeas petition did not raise cause for exception:³⁵⁹ Padilla’s custody “should be challenged in the place the Government has brought [him] to bear and against the person who is the immediate representative of the military authority that is detaining him.”³⁶⁰ Again, however, we are confronted with a rationale premised on the “immediate custodian” being a singular respondent who is “representative” of the official exercising detention authority, a premise at odds with the text of the Habeas Act of 1867, its legislative history, and the realities of contractual detention. And while the dissent disagreed with the ultimate decision, it, too, reaffirmed the immediate custodian and district of confinement rules,³⁶¹ merely chastising the majority for its “slavish application of a ‘bright-line rule.’”³⁶²

Despite a fractious opinion, the Padilla court was unanimous in its assertion of the general rules governing proper forum in a habeas action. Their disagreements were ultimately about when to carve out exceptions to the rules, rather than an interrogation of the rules themselves. According to the majority, the Court’s interpretation purportedly “derived from the terms of the habeas statute,” would prevent rampant forum shopping by habeas petitioners and district courts with overlapping jurisdiction, and track consistently with the concerns of the Reconstruction Congress that passed the Habeas Act of 1867.³⁶³

Yet, as outlined above, the certainty of the Court’s conclusion is belied by a review of the habeas statute’s original text and its legislative history. What’s more, the Court was silent on how its analysis might apply in the immigration context, noting in a footnote that its earlier decision in Ahrens v. Clark “left open” the question of whether the attorney general is a proper respondent in an immigration habeas action, but that the Court “decline[d] to resolve [it]”³⁶⁴—indeed, the Court never has. Instead, in the immigration context, district courts have been left to interpret the Supreme Court’s decision in Rumsfeld v. Padilla amidst its earlier caselaw. As discussed below, many district courts have applied the so-called “immediate custodian” and “district of confinement” rules, forcing immigrants to raise challenges to their present physical confinement in the district courts governing the locus of their detention—often in geographically isolated towns, far from home, loved ones, community, witnesses, evidence, and actual or potential counsel.

C. Rethinking the “Immediate Custodian” and “District of Confinement” Rules in the Immigration Context

The habeas statute’s Reconstruction Era beginnings suggest that the Act does not compel an interpretation that a district court’s power begins and ends with its territorial jurisdiction. Indeed, that jurisdiction could be defeated by transfers often conducted in obscurity seems to undermine the interests in liberty and equality at play during legislative debates.³⁶⁵ What’s more, even as the Padilla Court was motivated in large part by a desire to “prevent[] forum shopping by habeas petitioners,”³⁶⁶ the Court also held that habeas corpus “must not be subject to manipulation by those whose power it is designed to restrain.”³⁶⁷ Together, these ideas stand for the “logical principle that neither the petitioner nor the government should be able to forum shop or manipulate the availability of habeas relief.”³⁶⁸ Yet here we are, with government attorneys standing on Padilla to argue that immigration habeas petitioners must file their petitions in their districts of confinement, forcing immigrants to litigate their freedom wherever the government decides to confine them without regard to the inconvenience of the forum, the availability of evidence, witnesses, and counsel, and the discord it causes ongoing immigration litigation.

However, fairness in location has “little to do with jurisdiction and everything to do with due process and venue.”³⁶⁹ Venue is “litigant protective” because it “inquires into the propriety of the site of proceedings based on the parties’ connections to the place and obstacles to a fair proceeding”³⁷⁰ and has historically served to protect a litigant against an opposing party attempting to select an inconvenient location for trial as a tactical advantage.³⁷¹ Stripping immigration habeas actions of traditional venue protections in favor of a district of confinement rule has left immigrant petitioners exposed to the whims of the government without any protections against litigation in unfair fora, particularly as ICE transfer infrastructure has become more sophisticated and expansive.³⁷² Now, the government has the ability to transfer immigrants to the jurisdiction that will provide it with the most favorable precedent while potentially limiting an immigrant’s access to counsel, loved ones, and community support.³⁷³ This potential for manipulation is exacerbated by new video teleconferencing policies and the government’s seemingly unfettered authority to decide whether to transport an individual to their immigration hearing.³⁷⁴

Some courts have recognized that traditional venue principles appropriately apply in immigration habeas actions. Harkening back to the Supreme Court’s decision in Braden and to Justice Kennedy’s concurrence in Padilla, these courts view challenges to jurisdiction raised by the government as questions of personal jurisdiction and venue³⁷⁵—rightfully so. Statutory venue protections under 28 U.S.C. § 1391—together with the availability of motions to transfer under 28 U.S.C. § 1404(a) and forum non conveniens—operate as a “safeguard against a plaintiff’s decision to forum shop or to use an inconvenient forum to prejudice a defendant.”³⁷⁶ Accordingly, by applying venue principles, courts can protect defendants without prejudicing immigration habeas petitioners through rigid application of the district of confinement rule. By bringing the protective function of venue back into the fold, federal courts can partially curb abuse by either party.

Yet, applying venue principles alone cannot remedy the injustice of litigation in an unfair forum. By mapping the warden as sole proper respondent—the so-called “immediate custodian” rule—onto immigration habeas actions, courts ensure that immigrant habeas petitioners litigate in unfair fora upon transfer, because local and state jail wardens largely do not have the “minimum contacts” necessary to satisfy in personam jurisdiction in courts outside the district of confinement.³⁷⁷ Immigration detention is largely carried out through contracts and agreements, most commonly IGSAs with local and state governments, which may then subcontract detention services to a private provider.³⁷⁸ As applied in the immigration context, the default immediate custodian rule requires immigrants to name as a respondent a jail warden acting merely as an agent, rather than the secretary of the Department of Homeland Security, who oversees immigration detention operations. It is no wonder that the Padilla Court “decline[d] to resolve” the question of the proper respondent in the immigration habeas context,³⁷⁹ as naming a warden completely detached from the national detention scheme serves as a meaningless procedural hurdle and functions exclusively to pigeonhole immigrant petitioners into unfair fora by requiring that they sue wherever the federal government dictates.

That the warden is inaptly named as a respondent in an immigration habeas action is evidenced by the fact that they are represented in proceedings not by a local or state attorney but by the United States Attorney’s Office (USAO).³⁸⁰ The USAO’s statutory responsibilities under 28 U.S.C. § 547 are “the prosecution of criminal cases brought by the Federal Government; the prosecution and defense of civil cases in which the United States is a party; and the collection of debts owed the Federal Government which are administratively uncollectible.”³⁸¹ There is no exception in 28 U.S.C. § 547 for immigration cases. Conversely, in non-immigration-related habeas cases, the USAO does not represent wardens of state and local jails.³⁸²

Given the Habeas Act’s legislative history, the Padilla court’s own sidestep of the immigration question, and the asymmetries created in favor of the government in immigration habeas actions, federal courts should eschew the immediate custodian rule. Traditional venue principles serve as a sufficient protective measure against petitioner forum shopping, in the same way they have where Congress has authorized national service of process.³⁸³

Conclusion

As directly impacted immigrants, their communities, and their allies call for the abolition of immigration detention, detention’s harmful and coercive effects, as an extension of the U.S.’s larger carceral infrastructure, have gained prominence in immigration discourse. Indeed, multiple states have passed legislation to end contractual agreements with immigration agencies, creating barriers to the expansion of immigration detention in many localities. Yet, immigration detention continues to loom, reinforced by Supreme Court jurisprudence. Against this backdrop, the executive’s practice of peripheral detention and transfer—the extrication of individuals into largely remote facilities, away from the political community instrumental to vindicate rights—has adverse access-to-justice implications. This Article suggests that traditional venue factors provide a legal tool for expanding access to the courts for individuals seeking release from immigration detention, thereby further ensuring that immigrant petitioners’ claims are heard in the right fora.

*Deputy Director, Immigrant Rights Clinic, New York University School of Law. I gratefully acknowledge the invaluable comments of Mizue Aizeki, Adam Cox, Alina Das, Barry Friedman, Sarah Gillman, Emma Kaufman, Marie Mark, Shauna Marshall, David Mauer, Nancy Morawetz, Lindsay Nash, Isaac Pachulski, Margo Rofé, Sarah Vendzules, and participants in the Lutie on the Hudson Writing Workshop, the New York University School of Law Lawyering Scholarship Colloquium, and the Emerging Immigration Scholars Conference, as well as the helpful assistance of Noelia Rodriguez. I also extend my thanks to David Jimenez, Elena Hodges, and Nora Christiani for their excellent research assistance. I additionally thank the editorial staff of the Michigan Law Review for their incredibly thoughtful insights and perspectives. Notably, this Article would not have been possible without the camaraderie of the Sunrise Tribe, a group of Black women academics carrying the torch in diverse fields of study throughout the country, and without the support and understanding of my partner and children. It is dedicated to my late father, Jack Rofé, who always encouraged me to write.