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Does immigration detention deter unauthorized migration? This is a pressing question with critical policy implications given that the U.S. government has detained tens of thousands of migrants in reliance on this deterrence rationale. Briefly described, the federal government has argued that “one particular individual may be civilly detained for the sake of sending a message” to others “who may be considering immigration. In recent times, the potential migrants to whom the federal government has sought to send such a message are, by and large, from Mexico and Central America. Emerging empirical research, however, provides little to no evidence that detention has had the type and level of deterrent effect desired by the federal government. Why might this be so? This Essay addresses this question by examining three key “deterrence hurdles” that present challenges to detention as deterrence.

Part I of the Essay provides the policy context and theoretical framework for thinking about immigration detention as deterrence. I describe how and why U.S. policymakers have tried to use immigration detention to deter unauthorized migration. I then introduce the three deterrence hurdles that Paul Robinson and John Darley explore in their study of substantive criminal law. These hurdles or prerequisites to deterrence are the legal knowledge hurdle, the rational choice hurdle, and the perceived net cost hurdle. Part II considers how each of these hurdles likely operates in the immigration law context and perhaps in even more complex and unexpected ways than in the criminal law context. Part III maps an agenda for future research by highlighting some of the key inquiries that can shed light on these complexities and their implications for policymaking.

Library of Congress Subject Headings

Emigration and immigration law, Noncitizens--Government policy, Noncitizen detention centers