Starting a business can be overwhelming. You're juggling multiple roles, designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at shopify.nl. That's shopify.nl. It's time to see what you can accomplish with Shopify by your side. starting a business can be overwhelming you're juggling multiple roles designer marketer logistics manager all while bringing your vision to life shopify helps millions of business sell online build fast with templates and ai descriptions and photos inventory and shipping sign up for your one euro per month trial and start selling today at shopify.nl that's shopify.nl it's time to see what you can accomplish with shopify by your side Hannah McCarthy here. This is Civics 101. If you've listened to us in the past, you've almost certainly heard my co-host Nick Capodice 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, or 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, quote, being detained. Fortunately, Tyler was listening. Hello, Civics 101. This is Tyler from Milwaukee. Love your show. My question today is, what is detained and how is it different from arrested? And 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 Pisano-Getz. I'm a practicing immigration attorney and professor in Texas. You might remember Georgiana from our episode on asylum, 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 so many journalists, myself and Nick included, might talk about as though everyone knows what it means, when in 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, in 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 how does 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 subjected you to arrest. 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, right, which is a civil offense. But, you know, when we use the 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 than 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. But 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 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, you know, 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 over ICE. California Senators Alex Padilla and Adam Schiff say they're responding to concerns about how detainees are being treated inside this facility. 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, right? 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 if you can tell me that's a mirror with a straight face, but the detention officer just said, you know, oh, it needs to be polished. You're not allowed to have your own cell phone. So the 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, you know, 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, 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 So 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 and 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. OK, 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 Volker Turk calls on the United States to ensure that its migration policies and enforcement practices respect human dignity and due process rights, decrying the dehumanizing portrayal and harmful treatment of migrants and refugees. Now, this also makes me think of our own law, 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 writ of habeas corpus can be suspended in a time of invasion. So I would say that's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing. 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 client's only options because the detention rates are going up so significantly and the access to counsel, 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 for habeas. The reasons for detention, the length of that detention and so much more is coming up after a quick break. I have been dying to say this to our listeners for years. This is a bit of a humble brag. Actually, it's not humble in the slightest. It is a straight-up brag. I cook a lot. Like, a lot, a lot, a lot. It's a huge part of me. I often wish that I hosted a strange, surreal cooking podcast. You'd listen to that, right? So I cook for my family. I cook for my partner and her family. But when it is just me, on those sad, lonesome nights, I pretty much eat dried apricots and black licorice. And that is just not healthy. So I am thrilled down to my socks to be trying Green Chef. You've listened to podcasts before, so you know how these work. You get a box in the mail full of ingredients. You get exciting recipes. But Green Chef lets you pick from about 40 recipes a week. They deliver organic produce and responsibly sourced meats and seafood. Contrary to my last name, I almost never cook Italian food. So I'm excited to make this change. I was excited to click the little Mediterranean box and just eat a little healthier for the love of Mike. For healthy, low prep, low stress, low mess meals, just head to greenchef.com slash 50civics. That's five zero C-I-V-I-C-S. And use code 50civics to get 50% off your first month and then 20% off for two months with free shipping. That's code 50civics, five zero C-I-V-I-C-S at greenchef.com slash 50civics. Starting a business can be overwhelming. You're juggling multiple roles, designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at shopify.nl. That's shopify.nl. It's time to see what you can accomplish with Shopify by your side. Starting a business can be overwhelming. You're juggling multiple roles, designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at Shopify.nl. That's Shopify.nl. It's time to see what you can accomplish with Shopify by your side. Starting a business can be overwhelming. You're juggling multiple roles, designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at shopify.nl. That's shopify.nl. It's time to see what you can accomplish with Shopify by your side. We're back. A little reminder here that though things are certainly changing in this nation, legal interpretations among them, it is still vitally important to know our laws, know our history, know the point of the United States of America. Everyone needs a reminder now and then. Some people are especially forgetful. Fortunately, my co-host Nick Capodice and I wrote a book. It is called A User's Guide to Democracy, How America Works. It's got nearly everything you need to be able to say, hey, now that's a violation of my constitutional rights or any number of other things. And it is also fun. Because if you can, you've got to have some fun. You can get A User's Guide to Democracy wherever books are sold. All right, on to the show. This is Civics 101. I am talking with Georgiana Pisano Goetz, practicing immigration attorney and professor of law at the University of Houston Law Center, who is generously helping us to understand what immigration detention is. And before the break, we started to get into the different situations a detainee might be facing. Okay, so Georgiana, can we talk about those different situations for a detainee? Why they are in detention, for how long, etc.? As far as length of stay or knowing when you are going to get out, obviously when you're in criminal detention, you receive a sentence, you know what sentence you're going to serve. Immigration is a little bit harder. If you're in removal proceedings, you presumably will be either released when you succeed in your removal proceedings or deported if you do not succeed. However, that can take a long time for your removal proceedings to take place, which in criminal proceedings, people sometimes remain incarcerated during their trial as well. There are individuals subject to immigration detention who have already had their removal proceedings and either received an order of deportation and for whatever reason, the government was not able to deport them. This happens when an individual succeeds in their proceedings and they receive protection from deportation like withholding or deferred action OK and just quickly jumping in here removal proceedings that means the government is trying to remove you from the country trying to deport you you know, for example, for overstaying your visa or unauthorized entry into the country. You get a notice to appear for a hearing. You have a right to a lawyer at your own expense. You get a chance to argue your case for staying in this country. And a judge either says you do have to be deported or delays your removal. You can think of Deferred Action for Childhood Arrival or DACA, for example. Or a judge withholds your deportation, says you cannot be deported. I believe this is what Kilmar Abrego had, withholding of removal, which means that the government cannot deport them to their home country, but they can deport them anywhere else that will take them. now for obvious reasons the u.s did not pursue this right if someone has a genuine fear of their home country and they don't have ties to any other country they get to stay they don't have a path to citizenship but they don't get deported but technically they have been ordered deported from the united states and just that deportation has been withheld to their home country what we're seeing now is that individuals in that situation are being detained under this administration, and the administration is trying to get some other country to take them. We also see individuals who did not succeed in any way, did not receive any relief, like withholding or deferred action, received an order of deportation, but the government still was not able to deport them. This happens when the government doesn't have a good relationship with the home country of the individual. Cuba is very unlikely to receive deportees from the United States. A lot of countries might decline to take, you know, what may be seen as rejects from the United States. And so then they get caught, right? And they have an order of deportation and DHS could detain them, but they might be detaining them forever because they never get that diplomatic relationship repaired, and they can never actually effectuate deportation. Those individuals for the past several years to decades have been released on an order of supervision. They go to an ICE office every year. They confirm their address. So if ICE ever thinks they could actually deport them, they can take them back into detention. But in all likelihood, those circumstances don't change, and the government does not effectuate that deportation. OK, so that to me sounds similar to probation. You're not under lock and key, but you do have to check in with the powers that be. There are restrictions. Supervised release. So, yeah, similar idea. Under this administration, they are not confirming that a country will receive this individual, but they are taking everyone in that procedural posture back into custody. Obviously, ICE is focused on detaining individuals who are unlawfully present in the country. And there have been hundreds of thousands of illegal aliens who have been arrested and detained and deported from this country by ICE over the course of the last year. And that's their intention and that is their goal. And I just want to make sure I have this correct. We used to release these individuals from detention centers. They would be unsupervised, released. The government cannot find a way to deport them. But now we are bringing these individuals back into detention centers. But this is with the knowledge that they have already gone through a removal proceeding, that we cannot find a way to deport them. So are these individuals now in a kind of limbo where they will just be in this center for who knows how long? That is exactly right. And that is where habeas comes in. Because these are individuals that will never see a judge. They will never see an immigration judge. They are not in proceedings. Their proceedings are closed. So they are just sitting in a detention center being told that they're going to be deported for months. And it never happens. Months, if not longer. So that's where the immigration attorneys step in to file the habeas petitions with the federal courts to challenge their detention. Because there are laws against detaining individuals for longer than six months after they've been ordered removed if the government cannot show that there's a reasonable likelihood that they will actually be deported, right? Because then people could just be there forever. And that would, of course, be very illegal, part of the reason the framers put habeas corpus in the Constitution, Article 1, Section 9. Okay, and you are saying for those individuals, the people who got the deportation order, the government could not deport them, but has them in custody now, their only option is a habeas petition? If they're an individual like the ones we've been talking about who have already completed their removal proceedings, they have very few rights, right? They have a right to file a habeas petition, but they're not going to be put in touch with an attorney. They're not going to be informed of that avenue. So they can work with a lawyer, but they have to figure it out on their own. OK, so what about the people who have not actually gone before a judge yet but are in detention? What are their options? We might refer to the first group as post-order because they're after an order of removal. And then we might refer to everyone else as like pre-order. There's no order of removal or order granting relief. And then the pre-order individuals are in two different groups. One group is eligible for release on bond, and they have a right to a custody redetermination hearing before an immigration judge. The other group is subject to mandatory detention, and they do not have a right to even be considered to be released on bond. This is very different than criminal detention. And what we are seeing in 2025 and 2026 under the new administration is that the statutes that allow for mandatory detention, which were significantly increased in our last major immigration statute, which was the 1996 law, Illegal Immigration Reform and Immigrant Responsibility Act, largely expanded mandatory detention, and we're seeing a huge expansion of mandatory detention under this current administration. Now, what does mandatory detention mean? There is a phrase in the statutes for mandatory detention that reads, shall be taken into custody. This has previously included orders of supervision, right, that they check in with DHS, maybe DHS gives them an ankle monitor, any number of things. The current administration is reading, shall be taken into custody to equate to detention, mandatory detention that is not subject to review by an immigration judge. So this is subjecting a huge new group of people to detention with no relief, no rights to a custody redetermination. A custody redetermination, meaning a bond hearing, right? Like you pay money and you're allowed out of detention. They do not have that option. And supervised release used to be an option for this category of people to this preorder category. But this administration is not doing that anymore. So way more people in detention centers. Now, what about moving these detainees? Is there any law or rule that says that they have to stay in one place? Or can the government move people from one center to another? Yes, you are able to be moved from one detention to another, and you will be moved. That is completely at DHS's discretion. We have no idea why or when they will choose to do that. But it does not matter to DHS if you move across state lines because you're in federal custody. However, the law that applies to your case will change depending on the detention center you are in. It will change in your immigration proceedings based on the circuit that you are in, which refers to sort of regional legal rules that apply in the U.S. And it will change where your habeas petition is filed and what judges are going to hear your habeas petition because it has to be filed where you are being detained. So what we are seeing is that an attorney jumps in, they file a habeas petition, and DHS moves the individual away from the district where the habeas petition is pending, which removes the court's jurisdiction over the issue. Although some courts are trying very hard to keep that jurisdiction because it a very obvious bad faith behavior to have control over the location of one party and then just move them We saw a lot of individuals who were apprehended in Minnesota be transferred directly to Texas Texas is in the Fifth Circuit The Fifth Circuit is a very challenging place to have your immigration proceedings. And very recently, maybe two or three weeks ago, the Fifth Circuit issued a rule on these mandatory detention cases and whether or not they can have a bond hearing that really favored the government and stripped individuals of that bond hearing. So now I think we will see a huge uptick in DHS detentions and transfers to Texas because they want that Fifth Circuit law to apply where individuals don't have access to bond, regardless of where they were apprehended in the first place. All right. And, you know, just thinking about incarceration in the criminal system in America, I know that's really costly. I know totally depending on the state, but it can be anywhere between tens of thousands to hundreds of thousands of dollars per person per year. What is this increased detention of undocumented immigrants in the U.S. right now costing us? Yeah, so it's very expensive and it doesn't make money for taxpayers. It makes money for private prison groups, specifically CoreCivic and GeoGroup, who are all over and actually run a huge number of these detention centers have been outsourced to these private groups rather than being run by the government, which also brings up issues with accountability and people's ability to file complaints. Numbers-wise, we are seeing the current administration, I don't have completely up-to-date numbers, but we're well over 55,000 people being in detention at any given time. We know from a couple years ago that in June 2024, Congress approved $3.4 billion for this project. And we know that detaining individuals in immigration detention costs about $160 per person per day. And so it is extremely expensive. It's way more expensive than ankle monitors or any other form of supervision. And as far as the money, it just is going to be out of that huge check that Congress cut for DHS a couple months ago in the federal spending bill. And do you happen to know when detention centers first came into play in the immigration enforcement system in the U.S.? So they've been around for a long time. I will say the large majority of individuals, non-citizens, until about 1982 were released on parole, which is going to be that kind of supervised release, which obviously looked very different in 1982. But between 1954 and 1982, most non-citizens were released from immigration detention. There was just little to no interest in that, you know, huge financial investment in keeping people under 24-7 care. now i know that you have mentioned several laws and provisions over the course of this conversation but is there an overarching legal justification or guideline for the way the system is functioning right now, it sounds like it is operating in a very different sphere from our other legal systems. I think that is definitely how the current administration wants you to think about it. And what their arguments are rooted in is that this detention is justified and lawful under the Immigration and Nationality Act. And these detention centers are built to satisfy these standards of national detention standards set by ICE, which are different than the criminal standards. And there's really no reason for that. There's really no reason to have a different set of detention standards if you're detaining individuals. The standards for where they should be kept and what they have access to should look pretty similar and certainly should not be lower. But I do think the argument under the current administration is that this is a whole new ballgame. We need to be considering it completely separately, which is why some people can go into detention who are not in proceedings, who have no access to an immigration judge, and, you know, very limited access to counsel or any of the things that people in the criminal justice system have fought so hard to create this access for criminal detainees for decades. It feels like we are starting over at zero with immigration detention, and there's no reason for that. If anything, there's very little reason for detention at all when you're talking about a civil offense. I did want to note that what determines what the detention center looks like or has is the ICE performance-based national detention standards, which are not the same standards that apply to the criminal sense, obviously, because they're by ICE. And I do want to note that the standards are non-binding. So the detention centers do not actually have to meet them. So there are guidelines, but there's nothing that says that ICE has to abide by them. They do not have the force of law. They are simply non-binding suggestions. Is there any law that explicitly states how these detention centers should be operating? I would not say explicitly. Any detention is going to be subject to the Eighth Amendment, that it can't be cruel and unusual. OK, my last question for you, Georgiana, when you personally look at the shifts that have occurred within this detention system, how do you, as a practicing immigration lawyer, interpret these changes? It is very obviously a effort to deter people from immigrating to the United States, period. DHS is now offering individuals in detention up to $3,000 to deport themselves, which is also not something they can really offer under the law. But they're proceeding with that anyway, which tells you that the government would rather pay someone, pay to detain them, which is very expensive, and then pay them $3,000 rather than have them join the economy and work. So it is a huge just push against immigration, lawful and otherwise. It simply does not matter to them. More cynically, it is a huge wealth transfer to these private prison companies. The more detention there is, the more centers are built, the more people are detained, the more money CoreCivic and GeoGroup get paid by the federal government. That was Georgiana Pisano-Getz, practicing immigration attorney and professor of law at the University of Houston Law Center. And that does it for this episode of Civics 101. It was produced by me, Hannah McCarthy, and our executive producer, Rebecca Lavoie. Nick Capodice is my co-host. Marina Henke is our producer. Music in this episode comes from Epidemic Sound. If you have questions, please do not hesitate to ask. Tyler did. And without that question, I would certainly be unknowingly in the dark on this one. You can submit a question by clicking the Ask Civics 101 a question link on our homepage, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio. What is healthy spirituality and how does it help us thrive? We explore these questions on the new season of With and For, hosted by me, Dr. Pam King. With and For bridges psychology and spiritual wisdom to help you thrive. featuring conversations with experts like self-compassion pioneer Kristen Neff and author activist Parker Palmer. So go ahead, follow Within4, hosted by Dr. Pam King, wherever you get your podcasts. Curious about the future of healthcare? Tomorrow's Cure, the chart-topping and Ambie Award finalist podcast from Mayo Clinic, brings it to you today. I'm Kathy Wurzer, and in this new season, I sit down with researchers, doctors, and industry experts who are leading the way in medical innovation. From cutting-edge technology to breakthrough treatments, we'll explore how new solutions are improving and even saving lives. Follow Tomorrow's Cure wherever you listen to podcasts.
