What does "detention" mean?

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Hanna McCarty here. This is Civics101. If you've listened to us in the past, you've almost certainly heard my co-host Nick Capitej, or me, say, "You know, if you have any questions, please ask us.

We will do our best to answer them." Now, over the past few weeks, we have released several episodes about immigration and immigration and customs enforcement for ICE. We tried to get down to the very basics of the system,

how it works, and what has changed about it. One thing we did not do, however, is explain exactly what we meant when we kept referring to people "being detained." Fortunately, Tyler was listening.

Hello, Sittics101.

This is Tyler from Milwaukee.

Love your show. My question today is,

“"What is detained and how is it different from arrested?”

How long can someone be detained without being arrested?" Thanks. So, a huge thank you to Tyler without whom we might have glided glibly on thinking we knew what detention actually was,

and a huge thank you to our guest who does know what it actually is. Yes, my name is Georgiana Pazano Gets. I'm a practicing immigration attorney and professor in Texas. You might remember Georgiana from our episode on a silent. What it is and how it has changed.

And to my great relief, she was willing to once again help me wrap my mind around something that is referenced constantly in the headlines, something that's so many journalists, myself and Nick included, might talk about as though everyone knows what it means.

When an actual fact, I really didn't. All right.

So first, Georgiana, what is detention?

Yeah. What is detention? I don't know that it is that different than what people are picturing in a criminal sense, and that it looks like jail or it looks like prison,

but it is people with or without immigration documentation. People who are not citizens are taken into government custody, specifically the custody of the Department of Homeland Security, and they stay there until whatever citizenship or immigration proceedings they are in or not in resolve.

“And if someone end up in a detention center, what gets them there?”

So what would get them into a detention center is that they are not a citizen, and they have an interaction with a immigration official, so a member of DHS. Whether they are subject to detention and whether DHS makes an initial determination that they should be sent to a detention center

is going to have to do with their individual immigration background, and the circumstances of their apprehension by immigration authorities. And is apprehension different from arrest? Yes. So I think there is some confusion around arrest

because it's so common in a criminal setting that you would have a warrant for your arrest that you had committed a crime and that subject to DHS. The apprehension is a bit of a broader term because you don't have to commit a crime

to be apprehended and sent to detention. It can be that you don't have immigration status, which is a civil offense. But when we use a phrase arrest, it can kind of lead to some confusion in that area.

In terms of the legality, you say perhaps when people picture what detention is, it's not terribly different from jail or prison. How is it legally different? How is it legally different?

It is accounted for in a different law. Then criminal detention, so our jails and prisons follow different standards and laws and statutes that govern individuals criminal detention and what those detention centers look like jail and prison. The immigration detention centers are under a different statute,

the Immigration and Nationality Act. So they follow different standards and they serve sort of a different purpose.

The idea of what they look like and what they feel like is very similar.

I have heard from some individuals that they don't look like jail

or prison in comparison, I've been in all three. And I do think they have a lot of similarities to each other. In some aspects, what I saw in the immigration detention centers was much more severe than what I saw in some low security prisons.

“Could you describe for us what's actually in a detention center?”

What have you seen? Yeah, so there are many detention centers across the country. I saw one in the El Paso region in 2022 or 2023, and so that's all going to be subject to the time and place. They are closed to the public for tours,

although individuals can visit detainees, depending on the availability of each individual detention center. And they do offer tours to government employees and sometimes to employees and congressional representatives. This visit comes at a moment of national scrutiny of rice,

California Senators, Alex Padilla, and Adam Schiff, save their responding to concerns about how detainees are being treated

inside this facility when you walk inside.

It looks like a center block cement building. It's flat. It's surrounded by barbed wire. Every door locks behind you. Every door has to be unlocked before you go through it.

You go through security. There are very strict dress codes. That sort of thing.

“What struck me when I went was that the dorm area,”

in this specific detention center, was bunk beds. And it was a dorm area, an activity area, and a bathroom. None of those areas were separated by full walls,

which is to say you could be sitting at a table and see someone using the restroom. That's not necessarily something you would see in a low security prison. You might at least have a toilet stall.

They had these pieces of metal screwed into the wall. They were clearly burnished, so you couldn't see anything in them. But the detention officer said, "Here are the mirrors."

I don't know. You can tell me that's a mirror with a straight face. But the detention officer just said, "Oh, it needs to be polished." You're not allowed to have your own cell phone,

so they detainees. Individuals who are detained in these centers have limited access to phone time. They have to pay to use the phone. In recent years,

we've seen a little bit more access to video calls, but still not quite. This is a bit of a larger philosophical question for why don't people in jail and prison have phones. I would suggest that it's because

you don't want them to continue any criminal enterprise. That's not an issue in immigration detention. So, there is a question of why those individuals are not given more access to their belongings and to communication and to family members.

There is an outdoor area. There's a big cafeteria. There are jobs. They can work in the cafeteria or work in the laundry room. According to my tour of the detention facility,

they've been working in the laundry room. According to my tour of the detention facility, those jobs are all optional, but I don't know who would do them if the detainees did not. I guess one of the largest differences

is that immigration detention is not built for a long-term stay. So, in theory, you wouldn't be there long enough to get the jobs that you see in prisons

where they're manufacturing big items

and working for third-party companies and things like that.

But it also means that people that do stay in immigration detention for a long time are not receiving what they should be receiving in long-term care. Okay, so you're describing something that sounds very much like a prison,

which is a place someone ends up after they have been through the criminal justice system. After they have been arrested, charged, gone through the court system, been convicted, been sentenced.

That is not the process that precedes the kind of detention we are talking about today. What is the rationale behind the detention of undocumented immigrants?

“Is it the same rationale behind criminal detention?”

I guess I should say that criminal detention one of the reasons is punitive and that is impermissible as a rationale for immigration detention. It is even impermissible for immigration detention

to be used as a deterrence tactic, which is how the United States uses it to deter people from seeking asylum or any form of immigration status in the United States by threatening them

and following through with immigration detention. This is unlawful under international human rights law and is not a permissible rationale for the use of immigration detention. The other stated concerns that differ a little bit from criminal detention is that individuals

will be ordered deported, but they won't leave the United States

That the state has an interest in public security

and that some of these individuals have committed crimes

and should be detained pending their immigration proceedings. Okay, so this actually helps to explain

“why the United Nations Human Rights Chief”

has called the United States out, you know, reminded the country that it is bound to follow international law. UN Human Rights Chief Falker Dark calls on the United States

to ensure that its migration policies and enforcement practices respect human dignity and do process rights the crime dehumanizing portrayal and harmful treatment of migrants and refugees.

Now, this also makes me think of our own

specifically, habeas corpus. That is, you know, the legal tool, the procedure by which someone can challenge their detention by the government if they don't think the government

has the legal authority to detain them. And habeas corpus is something

“that the Trump administration has suggested it could suspend.”

Well, the Constitution is clear, and that, of course, is the Supreme Law of the land that the privilege of the written of habeas corpus can be suspended in a time of invasion. So, to say that's an option we're actively looking at.

Look, a lot of it depends on whether the court is in the right way. Is habeas corpus coming up a lot lately in cases of immigrant detention? Yes, absolutely. habeas comes up a lot,

and I will say in the past 12 months has skyrocketed in the immigration profession as really like one of your clients only options because the detention rates are going up so significantly and the access to council

among other things from detention is so challenging. Now, the reasons for an individual's detention will also dictate whether or not they are

“plausibly going to receive habeas relief.”

Be released as a result of a petition on for habeas. The reasons for detention, the length of that detention and so much more is coming up after a quick break. So, food delivery services have been around for a while and I've tried a lot of them

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