For people like them who are not subject to mandatory detention, the two traditional justifications for civil immigration detention would seem to remain applicable: do not detain unless the migrant poses a danger to the public or flight risk. See, e.g., Matter of Ellis, 20 I&N Dec. 641, 642 (BIA 1993).In recent months, however, DHS officials have added a third justification: deterrence. In a July 10 statement to the Senate, DHS Secretary Jeh Johnson described detention and removal as key parts of the Obama Administration’s “aggressive deterrence strategy focused on the removal and repatriation of recent border crossers” (emphasis added).

Likewise, the BIA has long required proof of dangerousness or flight risk to justify discretionary detention. Matter of Ellis, 20 I&N Dec. 641, 642 (B.I.A. 1993). Moreover, the immigration detention regime has reached enormous proportions.