Discretionary Immigration Detention

Immigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall—federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act that removed federal courts’ jurisdiction over discretionary decisions to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield. This Article explores the justifications for unreviewable discretion and for stripping federal court jurisdiction over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The Article also suggests manners by which the judiciary can limit the reach of this jurisdiction-stripping statute to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions.