Why All the Hullabaloo Over ICE Detention in New Jersey?

As you’ve likely heard, a fracas broke out at the ICE Delaney Hall Detention Center in Newark, N.J., last week, which resulted in the arrest of the city’s mayor and threats to investigate three members of Congress. Both sides may want to take a breather, but it all raises the question of why there is so much hullaballoo over that or any other immigration detention facility — particularly given all the clear, but apparently unconsidered, unintended consequences of that facility not operating in the Garden State.

Delaney Hall

According to the Associated Press (AP), Delaney Hall is a “1,000-bed facility along an industrial stretch of Newark Bay”, which “opened May 1” — less than two weeks ago.

Needless to say, it’s not possible to quickly stand-up and operate a “1,000-bed facility”, and in fact Delaney Hall — which sits next to a county prison — previously served as a halfway house run by GEO Group, a private entity.

In February, ICE reached an agreement with GEO to operate it as an immigration detention facility, and as the latter explained in its press release on that deal: “GEO’s support services include the exclusive use of the Facility by ICE, along with security, maintenance, and food services, as well as access to recreational amenities, medical care, and legal counsel.”

One might assume that providing such amenities to ICE detainees would garner wide support, but that’s not what happened.

Enter Ras Baraka

The current governor of New Jersey, Phil Murphy (D), is nearing the end of his second term in that position and is term-limited from running again.

The next New Jersey gubernatorial election is set for November 4, and among the candidates (in a crowded field) to replace Gov. Murphy is Ras Baraka (D), currently the mayor of Newark.

In March, Mayor Baraka joined a group of immigrants’ advocates protesting the GEO deal to switch Delaney Hall to ICE detention. As he stated at the time, his voters “don’t believe that people should be rounded up simply because they try to become citizens of the United States”.

And as AP noted after that protest: “Baraka rejects the notion that most voters support cracking down on immigrants without documentation. He calls openly for defending constitutional rights against searches and seizures without due process and a viable pathway to citizenship.”

Newark v. GEO

Perhaps not coincidentally, the city of Newark sued GEO in state court in New Jersey over the facility, “claiming that Geo Group was renovating the building without proper city permits and had barred city inspectors from accessing the building”.

GEO had that case removed to the U.S. District Court for the District of New Jersey, and complained in a motion filed on April 9 that the city’s effort “represents the latest in a series of efforts by New Jersey officials to cripple federal immigration enforcement in the state”.

Notably, GEO also argued in that motion that:

Newark Mayor Ras Baraka — who is currently a candidate for governor — has attended organized protests outside of the Delaney Hall Facility and proclaimed that “[r]egardless of the process, an immigrant detention center is not welcomed here.” [] Mayor Baraka has also publicly vowed to “padlock the building if necessary” to block federal immigration detention at Delaney Hall. [Emphasis in original.]

The Events of May 9

Which brings me to the (disputed) events of May 9 at the Delaney Hall facility.

Under section 527 of the Further Consolidated Appropriations Act, 2024 (Pub. L. 118-47), members of Congress can enter any ICE detention facility unannounced “for the purpose of conducting oversight”, and it was in that capacity that Democrat New Jersey Reps. Bonnie Watson Coleman, LaMonica McIver, and Rob Menendez showed up without warning at Delaney Hall on Friday.

Rep. Watson Coleman stated the trio “were able to get in, speak to detainees, check out the facilities, and make sure everything was OK there” over a two-hour period, though she also complained that “ICE kept giving us the run-around and kept saying that they needed to talk to someone else”.

Respectfully, having done a number of site visits during my (combined) eight-plus years on the Hill overseeing both Republican and Democrat administrations, such “run-arounds” and communications issues come with the territory. Lower-level government officials and contractors usually want to be helpful, but they also don’t want to get into trouble.

It’s the Scylla (your boss) and Charybdis (Congress) of working in the executive branch.

In any event, Baraka isn’t a member of Congress, and was denied entry and allegedly “ignored warnings to leave”. He was arrested for trespass by federal officers, and on May 9, Interim U.S. Attorney for the District of New Jersey Alina Habba tweeted:

For his part, Baraka has denied trespassing at the facility or any other wrongdoing.

DHS released video of the (chaotic) situation, and the following description from AP aptly describes what that video shows: “a federal official in a jacket with the logo of the Homeland Security Investigations can be heard telling Baraka he could not enter the facility because ‘you are not a Congress member.’ He was arrested after returning to the public side of the gate at the facility where protesters were gathered.”

ICE Detention

Personally, the whole controversy is confusing because there is nothing exceptional about ICE detention and there never has been.

Section 236(a) of the Immigration and Nationality Act (INA) gives DHS the authority to arrest deportable aliens and either detain them or release them on a bond or conditional parole. That has been the law since the INA was first enacted in 1952, and well before, too.

Moreover, various provisions of the INA mandate the detention of criminal aliens, including section 241(a)(2) of the INA and section 236(c)(1) of the INA.

The former provision requires the department to take aliens under final orders of removal into custody pending removal, and most pertinently bars the subsequent release of those aliens ordered removed under the criminal grounds of inadmissibility and deportability.

In that vein, section 236(c)(1) of the INA requires DHS to take aliens removable under certain grounds of inadmissibility and deportability into custody “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”.

The Biden administration’s refusal to comply with those INA detention mandates triggered a lawsuit filed by the states of Texas and Louisiana, Texas v. U.S.

While a June 2023 opinion by the Supreme Court in Texas held the states lacked standing to force the executive branch to detain aliens subject to mandatory detention under those provisions, the Laken Riley Act — the first bill passed in the current 119^th Congress — gives state attorneys general standing to sue if the administration fails to comply with those provisions.

Simply put, the Trump administration now lacks the authority to ignore Congress’s INA criminal alien detention mandates, regardless of whether Newark voters agree or not.

After the May 9 incident, DHS published a press release describing a few of the aliens detained at Delaney Hall, including “a known active member of MS13”; an individual wanted in Brazil for homicide; another individual described as having “verified MS-13 gang affiliation”; a Dominican national with “multiple felony convictions for possession of a controlled dangerous substance, drug trafficking, resisting arrest, and possession of a weapon for unlawful purposes”; and a different Dominican national with “felony arrests for possession of a controlled dangerous substance, obstruct administration of law, aggravated unlicensed driving, [and] assault with a deadly weapon with intent to kill”.

The Dominican national with convictions appears to be subject to mandatory detention, but the rest can seek release on bond from ICE or an immigration judge — not that they are likely to be released.

If Not Newark, than Somewhere Else

The bigger issue, however, is that if ICE cannot detain those aliens in Newark, it’s not simply going to release them — it will send them to some other jurisdiction, likely one far away from their lawyers and families and more amenable to immigration enforcement than Mayor Baraka and his constituents are.

One issue in the case of Mahmoud Khalil — a Columbia University graduate and Palestinian activist currently facing removal on foreign policy grounds — is that after his arrest at his Manhattan apartment on March 8, DHS sent him briefly to New Jersey before then transporting him to ICE detention in Jena, La.

As I reported on April 15, Khalil filed a habeas petition in federal district court in New York on March 9, the day after he was arrested, prompting the government to file a motion to dismiss or instead transfer that case to the U.S. District Court for the Western District of Louisiana, with jurisdiction over Jena.

On March 19, however, the New York judge transferred the case instead to federal district court in New Jersey, because that’s where Khalil was (briefly) being detained when he filed that petition.

Maybe — just maybe — Khalil was transferred out of New Jersey and sent to Louisiana because prior to the opening of Delaney Hall, ICE lacked sufficient detention space in New Jersey, which it has in abundance at the 182,890 sq. foot, 1,160-bed detention center in Jena, La. (which is also run by GEO).

It’s inconsistent for opponents of the administration’s immigration policies to both complain about ICE detaining aliens in New Jersey and about ICE moving detainees out of New Jersey. If not in the Garden State, they’re going to be held somewhere. That goes double for politicians with the power to change the immigrant detainee rules in the INA.