1
Across the Sloping Meadow Floor: An Empirical
Analysis of Preremoval Detention of Noncitizens
Joan-Josep Vallbé
Barak Kalir
Markus González-Beilfuss
In many countries, the law permits state authorities to detain noncitizens
before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable
noncitizens are held in police premises, and depending on the country
detention may last just one month (e.g., France) or up to 18 months (the
Netherlands). While previous research has explored various dimensions of
noncitizen detention including the legal procedure, health consequences,
the condition of detention centers, and the lives of deportable noncitizens,
the empirical assessment of the determinants of decisions on preremoval
detention are largely unexplored. Using data from court proceedings of
police petitions of detention in Spain and a quantitative strategy, in this
article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the
case, and the behavior of different actors involved in the procedure. To do
it, we fit models that take into account variation occurred at judicial district
levels. Results indicate, on the one hand, that relevant actors involved in
the procedure use different informational cues to decide on cases. On the
other hand, the role of prosecutors and attorneys during hearings proves
also relevant to predict detention.
Introduction
The conditions under which the police can detain deportable
non-citizens, as well as the length of detention and the rights of
detainees, vary among EU member states, sometimes dramatically
(European Migration Network 2014). For example, in the
The work presented in this article has received funds from the project The Social Life
of State Deportation Regimes: A Comparative Study of the Implementation Interface ERC2013-StG-336319), University of Amsterdam. The authors would like to thank Júlia
Terés, Martı́ Bonilla, and Paula Regueira for their work in data collection. This work was
presented at the research seminar of the Political Science Department of the University
of Barcelona and the authors would like to acknowledge their participants’ insightful
comments and constructive criticism. The first line of the title of this article corresponds
to a verse in Robert Grave’s poem ‘‘Country at war” from his homonymous book published in 1920.
Please direct all correspondence to Joan-Josep Vallbé, Department of Political Science, Constitutional Law and Philosophy of Law, University of Barcelona, Barcelona,
Spain; e-mail: vallbe@ub.edu
Law & Society Review, (2019)
© 2019 Law and Society Association. All rights reserved.
2
Across the Sloping Meadow Floor
Netherlands, non-citizens can be detained for an uninterrupted term
of up to six months. This term may be applied up to three times,
leading to a maximum detention term of 18 months. In France, in
sharp contrast, the maximum detention term stands at 45 days. Spanish law permits the detention of deportable non-citizens for a period
of up to 60 days. Because these figures imply serious consequences
on the liberty of non-citizens, not only deportation but also preremoval detention in centers for deportable non-citizens can have
serious consequences on the lives of thousands. In recent years, the
detention and deportation of non-citizens is increasingly being studied from different disciplines. Important studies have been conducted on the conditions in detention centers (Bosworth 2014), the
role of NGO’s in the process of detention and deportation (Fischer
2012; Kalir and Wissink 2016), the lives of deportable subjects before
and after their expulsion (Andrijasevic et al. 2010; Kalir 2010), the
effect of deportability on attitudes toward state authorities (Cavanagh
and Cauffman 2015), as well as the legal infrastructure that regulates
detention and permits deportation (Kanstroom 2007).
The detention and deportation of non-citizens are increasingly
topping political and public debates in countries worldwide, leading some scholars to talk of a “deportation turn” (Gibney 2008) as
part of a wider process known as the “securitization of migration”
(Bourbeau 2011; Huysmans 2006). This process of securitization
intensifies the intersection between criminal law and immigration
law, or what is now widely known in legal circles as the phenomenon of crimmigration (Stumpf 2011). While in recent years
pre-removal detention is mostly executed in specially designated
facilities and not in penitentiary ones, it still crucially involves the
sanctioning of ones’ fundamental right for the freedom of movement. As such, the legal decision to detain a potential deportable
non-citizen calls for much prudence, not least because of the very
serious social, economic and medical consequences for detainees
and potentially also for their families (Puthoopparambil and
Bjerneld 2016; Robjant et al. 2009; Storm and Engberg 2013).
Like many other state projects, deportations can suffer from
an implementation “deficit” or “surplus” (Kalir 2017): they are
carried out by state agents who act as “petty sovereigns” (Butler
2004), exercising much discretion in interpreting and applying
the rules and regulations on the ground, according to their values
and worldviews (Chan 1996; Lipsky 1980). The case of deportation is particularly interesting, because governments may decide
deliberately to delegate much power and discretion to the executive branch, and to pursue levels of implementation that are
impossible to draft as formal regulations, because they are either
politically controversial or in violation of international conventions
and human-rights standards (Fekete 2005). This amplifies, in
Vallbé, González-Beilfuss & Kalir
3
turn, the need for a judicial procedure that ensures that preremoval detention, which may lead to deportation, is applied only
in cases that law specifically stipulates.
A persistent dearth in the literature on deportation processes
is the study of the decisions by the various actors involved, which
lead to the detention and possible deportation of noncitizens. In
particular, while the issue has already been studied from a legal
perspective (e.g., Requejo Rodrı́guez (2006) for Spain), very few
empirical assessments of actual detention processes have been carried out, especially due to lack of available data. As an exception,
González-Beilfuss et al. (2018) have recently undertaken an analysis of police petitions for the detention of noncitizens in the province of Barcelona, Spain. Mostly descriptive, these studies have
allowed an examination of the work of all actors involved: the
police, the state prosecutor, the attorney, and the judge. The
authors conclude, first, that in Spain the institutions of detention
and deportation of noncitizens fails according to its own standards. Second, results seem to indicate that there is a systemic discrepancy in the factors according to which the police decide on
the initiation of a legal procedure for the detention of noncitizens
and the criteria applied by judges in ruling on the same matter.
Decisions over preremoval detention are surrounded by high
levels of uncertainty: a decision on a person’s liberty must be reached
within a short time relying on incomplete information—typically the
one provided by court sheets or police petitions. Empirical evidence
shows that, especially under these circumstances, judges and other
legal actors—as boundedly rational individuals—rely on “fast and
frugal heuristics” (Dhami and Ayton 2001; Gigerenzer and Goldstein
1996; Ryo 2016), that is, on just a few cues of information that help
them make quick decisions. The extent to which legal actors use such
cues (and if so, which ones) in decisions over noncitizen detention is
still a largely unexplored field.
Using data from noncitizen detention court cases in Spain, this
article intends to start filling this gap. In the next section, we provide context to the Spanish case and outline the theoretical framework regarding the heuristic model of judicial decision-making.
Once the framework is set, we derive a number of hypotheses from
the model. Section 3 provides a description of the data set used to
test the hypotheses, and results are presented in Section 4.
Theory
Context: detention of deportable noncitizens in Spain
The Spanish Immigration Act provides a specific proceeding
through which noncitizens who have been issued a deportation
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Across the Sloping Meadow Floor
Figure 1. Structure of the Proceedings for Noncitizen Detention before
Deportation in Spain.
order can be subjected to detention in centers of preremoval
detention for foreign population (Centro de Internamiento de
Extranjeros, CIE) for processing their forced removal from the
country (González-Beilfuss 2016). There are currently seven operating CIE that are run and controlled by the Spanish National
Police (González-Beilfuss 2017).1
Figure 1 depicts the proceeding that starts with the arrest of a
deportable noncitizen, until a judge decides over his detention in
a CIE. Once a noncitizen is arrested, everything must happen
within 72 hours. The procedure starts off with the Spanish
National Police Force—the only police force with the power to
deal with this matter—who must decide whether they issue a petition for detention against the arrested noncitizen, in order to
enforce a deportation order. If the petition is issued, a State prosecutor must proceed to provide an assessment of its legal grounds. After the prosecutor’s report is issued, the petition is
considered by an investigating judge who will both hear the
deportable noncitizen in court, and substantiate and document a
decision for or against detention. Deportable noncitizens have the
right to legal counsel prior and during the hearing (and afterward
if they are eventually detained in a CIE), which usually is stateappointed free legal aid. Once the hearing is finished, the judge
issues a decision. If the judge denies detention, the noncitizen
must be released immediately and can never be detained again
for the purpose of executing the same deportation order. If
authorized by the judge, detention in a CIE can last up to a
1
Unfortunately, there are no public official estimates of the actual number of noncitizens living in Spain or any of its regions. The Spanish authorities give only rough estimates of the number of illegal entries in Spain each year, which in the last two years have
been around 20,000. However, according to the Catalan Statistical Bureau (Idescat) the
legal foreign population in Catalonia is 1,040,000, representing 13.8% of the total population. Thus it is the region with the highest share of foreign population.
Vallbé, González-Beilfuss & Kalir
5
maximum of 60 days. In case the noncitizen has not been
removed from the country after that period (or before if deportation is deemed impossible by some circumstance), he must be
released.
According to the Spanish Immigration Act, a judge may
authorize preremoval detention in a CIE according to the principle of proportionality and the concrete circumstances of the case.
In particular, preremoval detention may be authorized if there is
a risk of absconding, if the noncitizen hampers removal or if criminal or administrative sanctions have been imposed or may be
imposed as a result of pending procedures. The lack of a fix
domicile or identity documentation, the existence of criminal
records and administrative sanctions, as well as of a serious illness
are explicitly mentioned in the law as criteria that should be taken
into account for authorizing preremoval detention. In practice,
however, police records play also an important role in the whole
proceeding, although this very concept raises important legal
problems for various reasons. First, because it is not a legally
defined concept; second, because police records usually reflect
police detentions regardless of their concrete consequences
(e.g., if the detainee was immediately released or if the detention
was confirmed by a judge); and finally, because a police file may
encompass facts that may be very different both in terms of
importance and in connection with preremoval detention.
Bounded rationality and judicial decision
The 72-hour process that leads to a decision about the detention or release of a deportable noncitizen represents a good example of an on-call situation (Vallbé 2015). The number of tasks a
judge must pay attention to while on call take the form of parallel
issues (March 1990)—typically raised by the police, lawyers, and
public prosecution. These situations demand quick decisions—with
high levels of uncertainty—in contrast with routinized, rule-based
decisions that characterize most legal proceedings in ordinary judicial decision-making.
These are situations where judges and other actors involved
resort to typical mechanisms of bounded rationality such as heuristics (Gigerenzer et al. 1999; Gigerenzer and Engel 2006;
Kahneman 2003; March 1978; Newell 1990; Newell and Simon
1972; Simon 1957) that help decision-makers to deal with complex problem spaces (Newell 1990). The model of a boundedly
rational decision-maker depicts an individual who cannot perceive
the world’s complexity in a granular, detailed manner. Rather, she
works with a simplified image of it, from which she can make decisions using relatively simple rules of thumb—heuristics. Heuristics
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Across the Sloping Meadow Floor
are simplified strategies to adapt to complex environments imposed
by problem-solving situations (Simon 1996) that allow for quick
decision-making (Kahneman et al. 1982; Kahneman and
Tversky 1979).
Heuristics are based on a limited number of pieces of information
(cues) that provide simplified paths to decision (Gigerenzer and
Goldstein 1996). These cues have values (given by the decision-maker)
that are essential both to determine the direction of the decision and to
establish when the decision process should stop (Gigerenzer et al. 1999;
Gigerenzer and Selten 2002).
The use of heuristics in legal reasoning has received some theoretical attention in the last years (Bainbridge and Gulati 2002;
Gigerenzer and Engel 2006; Guthrie et al. 2000; Rachlinski et al.
2012) and there is growing empirical evidence of its relevance in judicial decision-making. For instance, Vallbé (2015) carried out an empirical analysis of the extent to which the lack of organizational routines
providing tested heuristics (routinized rules of thumb) for inexperienced judges to deal with highly uncertain decision processes produced stressful conditions and inefficient organizational memories.
The role of specific cues for judicial decision have been empirically
tested in several environments, although to our knowledge only very
few studies have provided empirical assessments of detention decisions
of deportable noncitizens. In this sense, González-Beilfuss et al. (2018)
have recently provided descriptive analyses of the main actors and
decisions involved in noncitizen detention in Spain, highlighting several sources of inefficiency and lack of legal safeguards. On the one
hand, the scant existing empirical assessment of cues in pretrial custody decisions (Dhami 2003; Dhami and Ayton 2001; Ryo 2016) offers
also a very valuable background to our research. In their study of bail
decisions by British courts, Dhami and Ayton (2001) and Dhami
(2003) found that judges tend to use one single cue (usually related to
the noncitizen’s criminal record), and that their decisions rely heavily
on previous decisions made by other actors such as prosecutors and
the police. However, this last result was not systematic. On the other
hand, Ryo (2016) explored the role of heuristics in bond hearings specifically from U.S. immigration courts, which raised differences and
similarities from what Dhami and Ayton (2001) and Dhami (2003) had
found. On the one hand, Ryo (2016) found that the noncitizen’s criminal record was also a significant factor determining both bond granting
and bond amount in immigrant courts. Notwithstanding, unlike regular bail decisions in the United Kingdom, the study of immigration
courts in the United States highlight the role of attorneys. On the one
hand, Eagly and Shafer (2015) show that a high percentage of defendants (63%) go to court with no legal counsel. On the other, Ryo
(2016) shows that defendants with legal representation are 3.5 times
more likely to be granted bond (and in smaller amounts) than
Vallbé, González-Beilfuss & Kalir
7
unrepresented immigrants. However, none of the previous studies
have found that the noncitizens’ personal characteristics play any significant role in decisions.
Our contribution adds to this literature in at least two different
ways. The first one is that the previous research on the matter has
focused on decisions made by courts within common-law legal systems, while our study focuses on a typical case of Civil law tradition—
Spain. In this context, one relevant difference refers to the way
judges are appointed as well as their legal background. For instance,
the judges studied by Dhami and Ayton (2001) are lay magistrates
who “are members of the local community who are appointed to perform judicial duties on a part-time, unpaid basis,” and “who are not
required to have any formal legal training.” In contrast, judges in
Spain must have formal legal training (i.e., a law degree) and pass a
very demanding, competitive examination based on legal knowledge
(Poblet and Casanovas 2005; Vallbé 2015). In addition, as tenured
civil servants most judges enjoy life-long careers in the judiciary.
A second contribution deals with the role of other actors in
decisions. As commented earlier, while the role of previous decisions made by the police and prosecutors have been found to be
relevant to explain bail decisions in the United Kingdom (Dhami
2003), the study by Ryo (2016) on immigration courts points out
that legal representation is crucial when noncitizens do not hold
regular legal status. With the aim of providing an even richer picture, our study will take into account the role of both attorneys
and prosecutors in decisions regarding preremoval detention.
Hypotheses
We test two sets of hypotheses regarding the role of heuristic cues
and actors’ behavior in decisions over preremoval detention of noncitizens. A first set of hypotheses refers to legal factors. According to
the Spanish Immigration Act, detention is legally justified under circumstances that allude to a “risk of absconding,” whereby noncitizens
may evade their upcoming deportation if not in police custody
(by changing their domicile, taking on a forged identity and so forth).
Beyond that, noncitizens holding prison sentences for serious crimes
(prison terms longer than 1 year) are also eligible for deportation. This
leads to two different hypotheses. The first one (H11) expects to find
that noncitizens with records indicating risk of absconding deportation
should have higher chances to be detained in a CIE than noncitizens
without such records. In our second hypothesis related to legal factors
(H12) we expect to find that individuals holding records indicating
serious criminality will have higher chances to be detained in a CIE
than individuals without such records. Our second set of hypotheses
deals with the role of prosecutors and attorneys. In the first one (H21),
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Across the Sloping Meadow Floor
following Dhami (2003) we expect to find that judges rely heavily on
the State prosecution’s previous decision over the case—that is, that
judges tend to agree with the prosecution. Secondly (H22), in accordance with Ryo (2016), we expect that attorneys play a significant role:
those individuals with legal representation should have higher chances
to be released than those without active legal representation.
Data and method
To test these hypotheses we use a unique data set containing
information of the court proceedings of all police petitions to detain
deportable noncitizens in the province of Barcelona (Spain) during
2015. With 5.5 million inhabitants, the province of Barcelona is the
most populated area of the Spanish region of Catalonia (7.5 million),
the second most populated in Spain after Madrid (6.4 million), and
one of the areas with a higher percentage of noncitizens living and
working. Although Catalonia is an autonomous region within the
Spanish decentralized state, judicial procedures and immigration
policy are central state-dependent and homogeneous across the
country. The authors were granted access to court proceedings in
paper form. In order to transform them into data, a database interface was set up so that three Law Master’s students could carry out
the codification process of all case information in the court premises.
In 2015, 587 police petitions of noncitizen preremoval detention were admitted to court in the province of Barcelona, from
which we coded data regarding: the profile of the noncitizen (age,
nationality), the circumstances surrounding the arrest by the
police (e.g., place of arrest), the grounds on which the police petitioned a detention in a CIE, the statements and documents presented by the State prosecutor, the statements and documents
presented by the noncitizens and/or their attorneys, and the final
decision and argumentation of the investigating judge.
Our main dependent variables are the decision of the prosecutor
and that of the judge, which take value 0 if they decide in favor of
preremoval detention in a CIE, and 1 otherwise. In our data, prosecutors decide in favor of detention 75.3% of the time (which is
around the average in Spain), while judges authorize detentions in
only 48.9% of police petitions.2 The unit of analysis is a case file
corresponding to one single individual, and data have a hierarchical
structure: cases are nested in courts within judicial districts. Although
in less populated areas of Spain judicial districts may have only one
court, in the province of Barcelona, districts gather several courts.
2
There are no officially published data on the rate of judicial authorizations of
detention throughout Spain.
Vallbé, González-Beilfuss & Kalir
9
Each court has one single judge, although one prosecutor attends
several courts. Police petitions are brought to court to be processed
by the court whose judge is on call. Petitions are then randomly
assigned to a court within that judicial district.
In our data, the number of cases per court and district present high variation, with an average of 4.4 per court and a standard deviation of 3.8. The maximum number of cases per court is
22, and the minimum is 1. In addition, there is significant variation of our dependent variables across courts and districts. In
order to take that variation into account, we fit linear probability
models with fixed effects by judicial district.
All models include controls for the noncitizens’ age and nationality. Sex is not included in the models given that an overwhelming
majority of arrested noncitizens are male (96%), because the detention center of the province of Barcelona has no premises for female
detainees. Should a judge order the detention of a female noncitizen, she would have to be transported to the nearest CIE having
a female area, which is about 300 km away from Barcelona, and
incur in additional costs. As seen in Table 1, Morocco is the most
represented nationality among arrested noncitizens (39%), and
8 out the 15 nationalities with at least 10 individuals correspond to
Latin America and two to sub-Saharan Africa. Some nationalities
are not represented according to their actual distribution within
the legal immigrant population of the province of Barcelona. Precisely, Morocco is highly overrepresented among arrested noncitizens along with Albania, Gambia, Georgia, Senegal, and Algeria.
On the other hand, nationalities such as China, Ecuador, Russia,
Argentina, and Peru are underrepresented. Apart from the detention process on which we focus here, the chances that a detained
noncitizen is finally deported to his country after being held 60 days
in a CIE are dependent on the extent to which the detainee’s country of origin is willing to admit deported nationals back. Although
we have no information about potential bias in arrest due to the
prospects of an actual deportation (or any other factor), we cannot
rule out potential bias in the data. The list of underrepresented
countries contains cases known to have no agreement with the
Spanish government to make deportations possible—for example,
Peru and China. Regarding the overrepresented nationalities,
Morocco and Algeria do have deportation agreements with Spain.
However, considering that around half of those who are detained
in CIEs are eventually not deported (González-Beilfuss et al. 2018),
selection bias does not seem to play a crucial role. Although the
effect of other social background information such as working status or social ties might have been worth testing—despite the mixed
results reported in the literature (Dhami 2003; Ryo 2016)—such
information is not contained in the judicial files examined.
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Across the Sloping Meadow Floor
Table 1. Nationalities with at Least 10 Individuals Represented in the Data
Set
Nationality
Morocco
Ecuador
Gambia
Albania
Dominican Republic
Colombia
Georgia
Bolivia
Senegal
Chile
Peru
Algeria
Honduras
Pakistan
Paraguay
China
Russia
Other countries (31 countries)
N
% Among Noncitizens
% in Province
224
29
25
23
23
22
21
20
20
16
16
14
13
13
11
5
1
76
39.16
5.07
4.37
4.02
4.02
3.85
3.67
3.50
3.50
2.80
2.80
2.45
2.27
2.27
1.92
0.87
0.17
16.97
9.91
0.78
0.08
4.03
5.75
0.53
5.25
1.36
1.99
6.06
0.56
1.81
5.06
1.70
5.12
1.98
To test our hypotheses, models include variables regarding legal
factors and behavioral elements from prosecutors and attorneys.
Regarding the former, we include the time passed between the deportation order and arrest—measured in days—in order to control for
changes in immigration status. Data yield great variation, with deportation orders issued just one day before arrest while we may find noncitizens that were issued deportation orders 15 years ago (see Table 2).
However, 60% of petitions refer to orders that are less than one year
old, and 80% are less than 2 years old. The models also includes the
cause of deportation mentioned in the court proceeding, which has
been classified into three main categories that sum up the two major
causes established by law: illegal stay in the country (section 53.1a of
Immigration Act), and being convicted with a 1+ year prison term
(section 57.2 of Immigration Act). In all, 98.4% of petitions are
grounded on one of these two general causes for deportation. The rest
have been coded as “other causes.” Models also control for the percentage of foreign population within a district. Foreign population in the
average judicial district of the province of Barcelona constitutes around
9.8% of the total population. There are districts with very low percentages (the minimum is 3.9%) while others present number well above
the mean (the maximum is 19.2%).
Regarding the “criminal profile” of the noncitizen, petitions
contain the number of police records and the types of police records
and criminal priors. Table 2 shows that the average number of
police records is around nine, but with high variation. There is also
variation on the types of records (police petitions mentioned more
than 70 different types). When noncitizens do hold police and/or
criminal records, the petitions contain a list of these records, each
one identified by a short description provided by the police
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Vallbé, González-Beilfuss & Kalir
Table 2. Descriptive Statistics of the Continuous Variables Included in the
Models
Statistic
Decision by judge (release)
Decision by prosecutor (release)
Attorney active defense
Age of noncitizen
Time since deportation order (days)
Number of police records
Percent of immigrants in district
Prosecutor attends hearing
Types of police records
Absconding
Lesser crime
Felony
Migration status
Misdemeanor
Types of criminal priors
Absconding
Lesser crime
Felony
Misdemeanor
N
Mean
St. Dev.
Min
Max
564
507
432
509
430
505
568
437
0.511
0.247
0.808
34.9
617.4
9.1
9.8
0.590
0.500
0.431
0.394
13.3
675.9
11.5
4.8
0.492
0
0
0
19
1
0
3.9
0
1
1
1
101
5678
95
19.2
1
587
587
587
587
587
0.319
0.337
0.658
0.269
0.116
0.466
0.473
0.475
0.444
0.320
0
0
0
0
0
1
1
1
1
1
587
587
587
587
0.019
0.063
0.165
0.020
0.136
0.243
0.372
0.142
0
0
0
0
1
1
1
1
officer—for example, “DUI-driving under the influence (2003).”
There is no minimum or maximum number of records to be mentioned in a petition, and in cases with a fairly high number of
records (especially police records), officers may mention the most
recent ones or the ones they consider more relevant to ground their
petition. For each individual, we recorded up to five police and five
criminal records—the five most recent ones—and their dates. In
addition, because there is not a list of keywords or standardized
descriptions to define police or criminal records shared across
police offices (there is no single template for petitions, either), naming variation is extreme. We classified the types of records into six
different categories.
Given that the law explicitly refers to the need that the risk
that noncitizens escape a planned deportation and/or disrupt the
process of deportation should be taken into account by both
prosecutors and judges, a first category in our classification contains records that reflect such “risk of absconding.” Examples
are pending arrest warrants, forgery of ID documentation,
fraudulent marriage, obstruction of justice, escape from prison,
disobedience, and resisting arrest. A second type of (police)
record mentioned in police petitions refers to violations of the
Immigrant Act, such as illegal stay in Spanish territory or generally the “violation of the Immigrant Act,” and they have been
classified as “Immigration.” It should be noted that these are just
administrative violations—precisely the ones justifying the police
petition itself—and that it is in no way clear that these should
count as police records. Yet, they are so in many petitions. The
rest of police records have been classified according to their
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Across the Sloping Meadow Floor
seriousness in Spanish criminal law: felony, lesser crime, and
misdemeanor.
Table 2 also presents the distribution of each type of police
record and criminal prior among arrested noncitizens. Each individual may have more than one type of police record. It is worth mentioning that among those with police records, the police mention
mostly felonies. Moreover, one third of petitions with police records
contain the “risk of absconding” type. Among criminal priors, felony
is also first in frequency. Finally, in order to test our second set of
hypotheses, we code the behavior of the prosecution and of the
attorney. Prosecutors should be present in detention hearings, but
sometimes they cannot attend due to lack of resources: usually one
single prosecutor attends more than one court. When the prosecutor
fails to attend the hearing, then judges must rely on the
prosecution’s written report. Our data show that prosecutors actually
attend hearings 59% of the time. In the models of decision by judges
we include a control for whether the prosecutor is in favor or against
detention, expecting that judges will tend to agree with prosecutors.
On the other hand, in Spain noncitizens have the right to legal counsel before, during and after the hearing, which usually takes the
form of state-appointed attorneys. Legal counsel during hearings is
compulsory, and court records contain information about the arguments used by legal counsel to defend their clients’ interests in court.
Our data indicate that in 20% of the cases attorneys provided no
arguments whatsoever during the hearing, which reflects a passive
defense strategy. In order to test the effects of the defense strategy
on preremoval detention, we include a dummy variable that takes
value 1 if an attorney provides active defense, and 0 otherwise.
Results
All regression tabular results in this article are presented so that
negative coefficients indicate the worst-case scenario for the noncitizen (i.e., detention in a CIE), while positive coefficients indicate
effects toward their release. We test our hypotheses for both the State
prosecutor and the judge separately. Table 3 presents the results of a
baseline model that links the decision by the State prosecution and
the judge to the noncitizen’s personal characteristics. Although for
space reasons the coefficients of each nationality are not shown,
results show that neither age nor nationality have an effect on decisions regarding preremoval detention.
These results suggest that prosecutors and judges tend instead
to use legally related cues to decide over detention cases. In particular, none of the countries that are known to reject deportations
(such as China, Argentina, or Peru) present significant differences
13
Vallbé, González-Beilfuss & Kalir
Table 3. Linear Probability Regression Models of Prosecutor and Judge
Decisions on Personal Characteristics of Deportable Noncitizens
Dependent Variable
Prosecutor Decides Release
(1)
Nationality
Age
Age squared
Yes
−0.00
(0.00)
0.00
(0.00)
Geographic Area
(Ref. Sub-Saharan Africa)
Central-Caribbean
(2)
Yes
−0.00
(0.00)
0.00
(0.00)
Judge Decides Release
(3)
Yes
−0.01
(0.01)
0.00
(0.00)
−0.03
(0.11)
−0.01
(0.09)
0.00
(0.26)
−0.04
(0.15)
America-South
Asia-East
Asia-South
Asia-South East
Asia-West
Europe-East
Europe-West
Maghreb
Constant
Observations
Fixed Effects Judicial District
R2
Residual Std. Error
F Statistic
0.30**
(0.15)
441
Yes
0.20
0.43
1.37**
−0.03
(0.14)
0.01
(0.12)
−0.26
(0.44)
−0.07
(0.09)
0.37**
(0.17)
441
Yes
0.13
0.43
1.85***
0.65***
(0.16)
487
Yes
0.20
0.48
1.60***
(4)
Yes
−0.01
(0.01)
0.00
(0.00)
0.07
(0.12)
0.06
(0.01)
0.12
(0.29)
0.09
(0.15)
0.43
(0.48)
0.12
(0.14)
−0.05
(0.13)
−0.55
(0.48)
−0.08
(0.09)
0.74***
(0.18)
487
Yes
0.15
0.47
2.38***
Fixed effects by judicial districts.
Note: *p < 0.1; **p < 0.05; ***p < 0.01.
compared to Morocco, which is the reference nationality and a
country that accepts deported Moroccans back to its territory. Even
if nationalities are grouped into broader geographic areas, none of
the coefficients is significant.3 Our first set of hypotheses deal with
legal factors, and relevant results are presented in Table 4. In both
models we still control for the noncitizen’s personal characteristics,
which continue to yield nonsignificant effects. A first result that
requires our attention is that the time passed since the release of
the deportation order increases the chances of the prosecutor
agreeing on detention (Models 1 and 2). This runs against intuition, because there are no legal grounds on prioritizing older
expulsion orders. It could be argued that longer time since the
release of the order increases chances for noncitizens to be
3
There is no coefficient for the South-East Asia for prosecutor due to the low number of observations (2) and lack of variation in the prosecutor’s decision in these cases.
14
Across the Sloping Meadow Floor
eventually arrested. For instance, a longer time since their immigration status changed could mean higher chances to accumulate
police or criminal records. Besides, it could be the case that those
with older deportation orders are the ones who are detained at the
exit of prison—their order cannot be enforced until their sentence
is served. On the contrary, longer stay could mean higher odds of
being rooted in the local community and of finding more stable
means of living.
Our data seem to rule out the first line of argument, because
there is only a very weak relationship between older deportation
orders and the number of police records held by noncitizens
(r = 0.104, p < 0.05), and those who are arrested at prison exit
actually tend to have more recent deportation orders than the
ones arrested in the street.4 Although the effect identified is not
strong, results suggest that prosecutors tend to prioritize older
deportation orders over more recent ones, keeping all other
things constant, but judges do not (Models 3 and 4). In neither
case the place of detention has a significant effect on the decision.
Continuing with legal factors, a first difference arises between
prosecutors and judges regarding the purely legal grounds of
deportation. As commented earlier, the Spanish Immigration Act
establishes irregular stay—living in Spain without a visa or beyond
the period of voluntary exit after a visa is due—as the first ground
for deportation (section 53.1.a). Beyond that, foreigners holding
prison sentences for serious crimes (sentence terms of more than
1 year) are also eligible for deportation (art. 57.2). Results show
that in cases when the deportation order is grounded on
section 57.2 (prison sentence), the odds of the prosecution agreeing on detention are higher than when the order is grounded just
on irregular stay (section 53.1.a), though the coefficient is not significantly different from zero.
In order to get a more thorough understanding of the relationship between a noncitizen’s record and his chances of detention, our
models also include the number of police records and the types of
records cited in the police petition. Focusing on the former, Table 4
shows that the amount of police records held by a noncitizen has no
significant weight into either the prosecutor’s or judge’s decision.
However, when we look at the types of police records annotated by
the police in the petition, prosecutors (Model 2) are sensitive to those
that indicate certain risk of absconding, while no other types of police
4
The t-test comparing the average length of deportation orders by place of detention yields significant differences, with those being arrested in the street. Results are
t = 6.9803, df = 534.45, p = 0 for log transformed time, and t = 18.661, df = 429.21,
p = 0 when time is not transformed. Besides, there is only weak correlation (r = 0.31)
between a noncitizen’s number of police records and his number of criminal records.
15
Vallbé, González-Beilfuss & Kalir
Table 4. Linear Probability Regression Models of Prosecutor Decisions
Including Legal and Behavioral Factors
Dependent Variable
Prosecutor Decides
Release
Personal characteristics
Place of detention [Ref. street]
Prison
Other
Time since deportation order (ln)
Cause of deportation [Ref. Section 53.1a]
Section 57.2
Other cause
(1)
(2)
(3)
(4)
Yes
Yes
Yes
Yes
0.06
(0.10)
−0.17
(0.11)
−0.03*
(0.02)
0.01
(0.12)
−0.16
(0.11)
−0.04**
(0.02)
−0.06
(0.12)
0.03
(0.11)
0.02
(0.02)
−0.06
(0.07)
−0.09
(0.20)
−0.09
(0.08)
−0.10
(0.21)
−0.00
(0.00)
0.00
(0.08)
0.00
(0.00)
0.02
(0.08)
0.05
(0.08)
0.10
(0.22)
0.19**
(0.09)
0.51***
(0.07)
−0.00
(0.00)
0.13
(0.08)
Attorney active defense
Prosecutor recommends release
Number of police records
Perc. of immigrant population (district)
Type of police records
Absconding
Lesser crime
Felony
Migration status
Type of criminal records
Absconding
Lesser crime
Felony
Misdemeanor
Constant
Observations
Fixed effects judicial district
R2
Residual Std. Error
F Statistic
Judge Decides
Release
0.55
(1.37)
324
Yes
0.21
0.43
1.05
0.01
(0.13)
0.06
(0.11)
0.02
(0.02)
0.09
(0.09)
0.06
(0.22)
0.21**
(0.09)
0.51***
(0.07)
−0.00
(0.00)
0.13
(0.08)
−0.10*
(0.06)
−0.01
(0.06)
0.06
(0.07)
0.10
(0.08)
0.02
(0.06)
−0.03
(0.06)
−0.17**
(0.08)
0.03
(0.09)
−0.03
(0.17)
−0.02
(0.10)
0.11
(0.09)
0.20
(0.17)
0.25
(1.34)
324
Yes
0.24
0.43
1.05
−0.25
(0.18)
−0.07
(0.11)
−0.13
(0.10)
0.09
(0.19)
−1.79
(1.36)
278
Yes
0.43
0.43
2.27***
−1.93
(1.347)
278
Yes
0.41
0.43
2.37***
Fixed effects by judicial district.
Note: *p < 0.1; **p < 0.05; ***p < 0.01.
records or criminal priors (even holding a felony record) seem to
affect the direction of the prosecution’s decision. In contrast, Model
4 shows that police records indicating risk of absconding are not
determinants in the judicial decision, while having police records
indicating serious criminality (felony) is. Holding all other factors
16
Across the Sloping Meadow Floor
constant, having police records indicating felony reduces the probability of being released by 0.18 points. Having criminal records indicating felony yields also a negative coefficient, although the effects
are not significant, probably due to the very reduced number of
observations where particular types of criminal records are mentioned at all.
In conclusion, legal factors do affect decisions on the detention of noncitizens, but judges and prosecutors do not present a
homogeneous decision-making pattern in terms of cues: while
prosecutors do take risk of absconding into account, judges do
not. Yet, judges take noncitizen’s serious crime history into consideration (and prosecutors do not). This gives, again, only partial
support to our first set of hypotheses.
We turn now to the context in which the deportation process
takes place and the behavior of other actors. We focus first on the role
of public prosecutors. Models 3 and 4 show that in cases when the
prosecutor opposes detention, judges tend to agree, as we expected.
In particular, when the prosecutor recommends that the noncitizen
be released, the probability that judges acquiesce increases 0.5 points.
Figure 2 shows that it actually makes all the difference: when prosecutors recommend the release of the noncitizen the probability that
judges decide to release is above 0.9, while this probability would
Figure 2. Predicted Probability of a Judge Releasing a Noncitizen Depending
on the Direction of the Report Made by the Prosecutor.
Vallbé, González-Beilfuss & Kalir
17
drop to 0.5 should the prosecutor recommend detention. Our
hypothesis H21, therefore, receives full support from our data.
The second factor to be considered is the role of attorneys. As
commented earlier, detainees must have (usually free, stateappointed) legal counsel to attend the hearing, but sometimes
attorneys only provide passive defense strategies. Results (Models
3 and 4) show that inactive counsel strategies decrease the probabilities of noncitizens being released by around 0.2 points.
Figure 3 shows that the defense strategy followed by attorneys
makes, again, all the difference: keeping all other factors constant,
noncitizens who are actively defended by their attorneys present a
predicted probability of being released above 0.6 (with all values
of the 95% confidence interval above 0.5), while the point estimate
of the probability of being released for those who are defended by
passive lawyers is around 0.4.
It might be argued that the role of attorneys might be endogenous to their perceived chances of success. In other words, attorneys
might tend to be active only in cases they perceive they can win and
less active where release chances look very bad for the noncitizen for
“objective” reasons. However, data show that the average number of
Figure 3. Predicted Probability of a Judge Releasing a Noncitizen Depending
on the Defense Strategy Provided by Attorney.
18
Across the Sloping Meadow Floor
police records held by noncitizens whose attorneys provide active
defense are actually a bit higher than of those whose attorneys are
passive, although the differences are not statistically significant.5 In
addition, interacting the defense strategy with the cause of deportation, the place of arrest, or having criminal priors did yield no significant effects, either, which opens a path for further research on the
determinants of defense strategy for preremoval detention that is
beyond the scope of the present article. The main results found in
this article are robust to a multilevel specification of the models. Multilevel models are adequate to deal with unbalanced samples at the
second and third level (Gelman and Hill 2007). In these models
district-level intercepts are given a probability distribution, which
relates them to the average intercept estimates are less biased than
the ones we would get by fitting standard fixed-effects models. As
shown in Table A1 in the Appendix, results with this more demanding specification hold. The one exception concerns the coefficient of
police records indicating risk of absconding deportation in the model
of the prosecutor’s decision, which ceases to be statistically significant
although it still has the correct sign.
Conclusions
This article offers an empirical analysis of decisions regarding preremoval detention of non-citizens. In particular, it uses data from Spanish court proceedings related to noncitizen detention to assess what
factors determine decisions made by prosecutors and judges in these
cases. As decisions over detention are made under conditions of uncertainty (typically time pressure and incomplete information), the article
shows what cues are determinant to boundedly rational decisions.
According to this theoretical framework and previous literature on comparable settings, two sets of hypotheses were tested
through linear probability models taking into account variation
occurred at judicial district levels. In a first baseline model, we
found that the noncitizens’ personal characteristics do not have an
effect on their chances of detention in centers of detention for foreign immigrants, thus aligning with previous literature (Dhami
2003; Ryo 2016). In effect, neither age nor nationality have a significant weight on the decisions made by prosecutors or judges.
The first set of hypotheses referred to legal factors. According
to the Spanish Immigration legislation, preremoval detention is
legally justified when noncitizens present certain risk of evading or
escaping their upcoming deportation if not in police custody. In
5
The t-test comparing the means between both groups yields: t = 1.1765,
df = 130.27, p = 0.24.
Vallbé, González-Beilfuss & Kalir
19
addition, having a serious criminal record also makes noncitizens
eligible for detention and deportation. These legal conditions led to
two different hypotheses. On the one hand, we expected to find
that noncitizen with records indicating risk of absconding deportation should have higher chances to be detained. On the other hand,
noncitizens holding records indicating serious criminality would also
have higher changes to be detained.
When legal factors were considered controlling for other variables, a first noticeable result was that the time since immigration
status changed (measured as the time passed since deportation
order was issued) is a significant cue for prosecutors favoring detention, although no legal grounds support it. We also found that this
factor does not affect judges’ decisions. We checked whether older
change in immigration status is associated with higher changes to
incur in criminal activities, but results ruled out this possibility.
To further test our first set of hypotheses, we added the types
of police record and criminal prior held by noncitizens into the
model, and results indicate that apart from the purely legal grounds of the police petition, prosecutors are also sensitive to those
records that suggest risk of absconding from the noncitizen, but
not to other types of police records or criminal priors (even holding a felony record) affect the direction of the prosecution’s decision. In contrast, risk of escaping deportation is not a significant
factor in the decisions made by judges, who instead rely heavily
on the noncitizens’ criminal profile. In this sense, criminal priors
indicating serious criminality (felony) are a strong predictor of
judges authorizing detention.
A second set of hypotheses looked at decisions in the context of
other actors’ behavior. In particular, we expected that judges considered the position taken by the State prosecution regarding a
noncitizen’s detention, and that legal counsel defense had a positive
effect on the noncitizen’s chances to be released. Our results give
ample support to these two hypotheses. On the one hand, judges
are highly sensitive to prosecutorial behavior and judges tend to
agree with the prosecutor. In particular, when the prosecutor recommends releasing the noncitizen, the probability of a judge taking
the same decision is very close to 1, while defendants whose detention is supported by the State prosecution have on average a probability of only 0.4 to have the judge denying detention. Turning to
the role of attorneys, our results align with previous literature in
finding that when attorneys do not provide effective defense, the
probability of a noncitizen being released decreases significantly,
while active defense strategies provide good chances for a noncitizen to be set free. These findings are consistent with previous
research on immigration courts (Ryo 2016) and suggest that
restrictions on the access to legal advice in processes of detention
20
Across the Sloping Meadow Floor
and deportation can have serious consequences on the well-being
of noncitizens. Some European countries such as Hungary, Luxembourg, Germany, Estonia, and Malta do actually restrict access to
legal advice for noncitizens under certain circumstances (European
Migration Network 2014).
Overall our results suggest that despite a few similarities the
decision processes followed by prosecutors and judges do not conform to a common pattern of decision-making, because they tend
to use different cues. Despite being experienced legal experts
(due to the demanding recruiting policy adopted in Spain for
both judges and prosecutors), both actors rely on just a very few
cues, which resembles the pattern followed by lay magistrates in
other legal systems (Dhami 2003). Therefore, legal expertise does
not seem to provide more complex decision processes.
As an overall conclusion, regarding the main differences
between judges and prosecutors, on the one hand prosecutors
seem to adopt a view closer to that of the police than to the judge.
Police petitions demand restrictions of liberty to assure the execution of a deportation order, and results show that prosecutors precisely decide based on cues that signal higher risk of escaping
eventual deportation. In this sense, prosecutors would mostly
decide to minimize that risk. On the other hand, judges do not
seem especially concerned about the effectiveness with which
pending deportation orders are eventually enforced. Instead,
their almost unique focus on the noncitizen’s felony profile indicates that they tend to authorize those detentions that they perceive minimize threats to public safety.
The results of this study, however, should be taken with caution, due to a number of limitations in our data that could only be
addressed through further research and data. First of all, the
reported gender unbalance in our data limits the generalization
power of our models and results. This, in turn, would help
exploring the potential effect of gender (both of immigrants and
legal actors) in judicial behavior. Second, further information
about all other actors involved (judges, prosecutors, and lawyers)
might be used to refine our models and connect them to other
existing models of judicial decision making that take into account
judges’ policy orientations and strategic behavior (Epstein and
Knight 2000; Segal and Spaeth 2002), which would help shedding
more light to a complex cognitive and behavioral process. Finally,
our results also point to a third dimension of the procedure that
will deserve further attention—the role of attorneys. Our data do
not allow for an exploration of the factors behind the observed
variation in attorney defense strategy, which limits our understanding of a procedure that, eventually, each year has serious
consequences on the liberty of hundreds of people.
21
Vallbé, González-Beilfuss & Kalir
Appendix A
Robustness Check: Multilevel Linear Probability Models
Table A1 Multilevel Linear Probability Models of Judicial and Prosecutorial
Decisions on Preremoval Detentions
Dependent Variable
Prosecutor
Decides Release
Prosecutor
Decides Release
(1)
(2)
(3)
(4)
Yes
Yes
Yes
Yes
−0.12
(0.01)
−0.02
(0.09)
−0.03
(0.02)
−0.13
(0.10)
−0.04
(0.12)
−0.03*
(0.02)
−0.01
(0.10)
0.00
(0.10)
0.02
(0.02)
Cause of deportation [Ref. Section 53.1a]
Section 57.2
−0.08
(0.07)
Other cause
−0.15
(0.20)
Attorney active defense
−0.11
(0.07)
−0.17
(0.20)
0.07
(0.08)
−0.02
(0.21)
0.24***
(0.08)
0.50***
(0.06)
−0.00
(0.00)
0.00
(0.01)
Personal background
Place of detention [Ref. Street]
Other
Prison
Time since deportation order (ln)
−0.00
(0.00)
−0.01
−0.00
(0.00)
−0.01
0.04
(0.07)
0.01
(0.21)
0.22***
(0.08)
0.50***
(0.06)
−0.00
(0.00)
0.00
(0.01)
(0.01)
(0.01)
Prosecutor recommends release
Number of police records
Perc. of immigrant population
(district)
Type of police records
Absconding
Felony
Migration status
Type of criminal priors
Absconding
Lesser crime
Misdemeanor
Felony
Constant
Observations
Log Likelihood
Akaike Inf. Crit.
Bayesian Inf. Crit.
Intercepts vary by judicial district.
Note: *p < 0.1; **p < 0.05; ***p < 0.01.
0.02
(0.06)
−0.03
(0.06)
−0.17**
(0.07)
0.02
(0.08)
−0.07
(0.06)
−0.00
(0.06)
0.04
(0.07)
0.06
(0.07)
Lesser crime
0.76***
(0.21)
324
−221.84
541.68
726.94
−0.03
(0.17)
−0.03
(0.10)
0.19
(0.17)
0.10
(0.09)
0.69***
(0.25)
324
−231.01
576.01
791.52
0.02
(0.10)
0.08
(0.11)
0.03
(0.02)
0.12
(0.25)
278
−195.36
482.72
649.59
−0.25
(0.18)
−0.08
(0.10)
0.06
(0.18)
−0.10
(0.09)
0.24
(0.27)
278
−202.04
512.09
707.98
22
Across the Sloping Meadow Floor
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Joan-Josep Vallbé is Associate Professor of Political Science at the
Department of Political Science, Constitutional Law, and Philosophy of
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Across the Sloping Meadow Floor
Law of the University of Barcelona. His research focuses on the empirical
analysis of judicial behavior, institutions, governance, and political behavior. He has published in journals such as Political Geography, Urban
Studies, Journal of Urban Affairs, and Journal of Cultural Economics, as well as in leading book publishers such as Springer and
Wiley.
Markus González-Beilfuss is Associate Professor of Constitutional Law
at the Department of Political Science, Constitutional Law, and Philosophy of Law of the University of Barcelona. He was adviser of the Spanish
Constitutional Court from 2005 to 2010). He was Immigration Director
General of the Spanish Government from 2010 to 2011). His research
and teaching subjects include immigration, human trafficking, constitutional jurisdiction, and federalism, on which he has published a variety of
works.
Barak Kalir is Associate Professor at the Department of Anthropology of
the University of Amsterdam. He is currently the principal investigator of
the ERC-funded project The Social Life of State Deportation Regimes and
codirector of the UvA’s Institute for Migration and Ethnic Studies. He
has published his work in several international venues, including Citizenship Studies and the Journal of Ethnic and Migration Studies.