AGAINST the DAY
Jennifer M. Chacón
Immigration Detention: No Turning Back?
The growth in the number of noncitizens in immigration detention in the
United States over the past two decades is striking. In 1994 the Immigration
and Naturalization Service (INS) detained approximately 6,000 noncitizens
a day in immigration detention, and annual detention capacity was just over
100,000. In less than two decades, that annual detention capacity has qua-
drupled. In fiscal year 2011, approximately 429,000 people were confined in
an immigration detention facility. The number of noncitizens detained on
any given day now tops 30,000 and has for several years. The length of stay
for an immigrant in detention varies widely, but one snapshot taken on Janu-
ary 25, 2009, revealed that the average stay for detainees present on that date
was eighty-one days (Kerwin and Lin 2009). Some immigrants are detained
much longer.
The growth in immigration detention is intertwined with, but not fully
explained by, national security concerns. The US government certainly used
immigration detention as a way to address widespread concern over national
security in the wake of the September 11, 2001, attack on the United States by
al-Qaeda. Thousands of Arabs and Muslims were placed in immigration
detention for technical violations of their immigrant and nonimmigrant
visas, notwithstanding the lack of evidence that these detainees posed any
actual risk to national security. The events of September 11 also prompted the
implementation of long-contemplated changes to the federal bureaucracies
responsible for immigration enforcement and detention. Congressional legis-
lation created the Department of Homeland Security (DHS), and the INS was
broken up into three separate agencies that operate, along with other agen-
cies like the Federal Emergency Management Agency and the Coast Guard,
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under the umbrella of the DHS. Since that reorganization, Immigration and
Customs Enforcement (ICE) has overseen immigration detention.
The frenzy of detentions after September 11 was striking in its
unabashed reliance on racial and religious profiling, but it does not explain
either the current size of the United States’ detained immigrant population
or the longevity of the detention boom. Detention figures actually began to
swell after 1996, in response to changes in the law that vastly expanded the
number of noncitizens subject to mandatory detention during removal pro-
ceedings. As Margaret Taylor (2005: 345) notes, “The detention mandate that
ultimately became [Immigration and Nationality Act] § 236(c) was inserted
without study into omnibus legislation that Congress was in a hurry to pass.
And the statute was widely considered by experts inside and outside the gov-
ernment to be unduly harsh, unrealistic and unwise.” The legal changes
enacted by Congress in 1996 drove a doubling of the detained immigrant
population from 1996 to 2000.
The next significant spike in detention figures occurred in 2007. In
late 2005 President George W. Bush declared that his administration was
working to end “catch and release” policies at the border. He announced that
migrants coming into the United States without authorization would be
detained and formally removed rather than simply turned back. Congress
also provided substantial resources in this period to increase immigration
enforcement and detention capacity. In 2007, for the first time, the number
of people in immigration detention topped thirty thousand a day (Kerwin
and Lin 2009: 6). The numbers have not dipped below thirty thousand since
that time. The majority of immigration detainees in the United States are
from Mexico and Central America. A January 25, 2009, snapshot showed 37
percent of detainees were from Mexico, 28 percent from Central America, 7
percent from the Caribbean, and 6 percent from South America (12).
Immigration detention in the United States is “civil” detention. As a
legal matter, this means that an individual placed in immigration deten-
tion is not entitled to the same protections that would apply if he or she
were being incarcerated for a crime. Individuals charged with crimes,
whether citizens or not, have constitutional protections against lengthy
pretrial detentions. They also have a right to counsel at the government’s
expense to assist in their defense. In contrast, immigration detention is
not subject to the same set of procedural protections. The Supreme Court
clearly articulated this distinction in the 1896 case of Wong Wing v. United
States, in which the Court distinguished between “detention or temporary
confinement, as part of the means necessary to give effect to the provisions
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Immigration Detention: No Turning Back? 623
for the exclusion or expulsion of aliens,” and a sentence of a year at hard
labor. The Court concluded that the former was “not imprisonment in a
legal sense,” whereas the latter was and therefore was subject to the proce-
dural protections of the Fourth and Fifth Amendments (Wong Wing v.
United States, 163 U.S. 228 (1896)). In this legal construction, immigration
detention is simply a holding mechanism used to allow the government to
effectuate its civil immigration enforcement goals. It is not punitive in
nature. Thus immigrant detainees are accorded minimal due process pro-
tections by courts, and courts largely look to congressional legislation to
determine what process is due.
The legal conclusion that immigration detention is not punitive is
essential to its operation in its current form. Because immigration detention
is not treated under the law as a criminal punishment, immigrants are fre-
quently detained pending removal proceedings in the absence of any indi-
vidualized showing that the immigrant poses a danger to the community
or is a flight risk. Indeed, this is precisely what the 1996 amendments to the
Immigration and Nationality Act’s detention provisions were designed to
achieve. Categorical pretrial detention of this nature would be unconstitu-
tional in the criminal setting. It is permitted for immigrant detainees.
The glaring problem with the legal doctrine that constructs immigra-
tion detention as nonpunitive is that it is a fiction. Detention is punitive, and
it is experienced as such by immigrants. Immigrants in detention feel the
punitive force of separation from families, inadequate conditions of deten-
tion, demeaning treatment, and lack of easy access to medical services. For
some, the results are deadly; over one hundred inmates died in immigration
detention between 2003 and 2009 (Bernstein 2010). Moreover, immigrant
detainees are frequently housed in the same facilities as criminal offenders,
and under the same conditions. A 2009 report by Dora Schriro, who at the
time was a senior official at the Department of Homeland Security, con-
cluded that the vast majority of immigration detainees were detained under
punitive conditions inappropriate for civil detainees. Although ICE subse-
quently committed to expanding bed space available in more “civil” deten-
tion spaces, the vast majority of immigrant detainees continue to spend their
time in jails and jail-like facilities (Human Rights First 2011). Moreover,
despite efforts to elaborate civil standards for detention, ICE and DHS stan-
dards for detention, including those that articulate standards for populations
with special needs, continue to be modeled on standards created for prisons
and jails. These standards therefore require more restrictions than would be
necessary for truly civil detention (Human Rights First 2011).
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The legal conclusion that immigration detention is not punitive helps
explain why courts do not evaluate immigration detention in the same way
that they evaluate criminal punishment, but it does not explain why, as a
policy matter, immigration detention came to be such a prominent feature
of the US penal landscape. It is worth asking how this happened.
Perhaps it is no surprise that a society that relies so heavily on incar-
ceration to address problems of crime and general social disorder would
turn to the same model to handle concerns about migration. The United
States does, after all, lead the free world in its prison population rate. High
levels of incarceration in the United States—including the widespread incar-
ceration of low-level offenders and nonviolent drug offenders—have been
the subject of intense study and debate for decades. Scholars have proposed
several explanations for the phenomenal growth of incarceration and the
underlying “tough on crime” policies that generated both mass incarcera-
tion and expansions of other forms of social control. Explanations include
concern generated by rising crime rates (real and perceived), the federaliza-
tion of criminal law, racism, cultural anxieties, and the economic interests of
security firms, prison guards, unions, and the like. Many of these explana-
tions also seem useful in assessing the rise of immigration detention.
Certainly many of the same actors that benefited economically from
the nation’s commitment to criminal incarceration continue to benefit from
the expansion of immigration detention. Indeed, since the recession of 2008,
numerous states and localities have opted to cut back on the use of expensive
incarceration options in the criminal justice sphere. The detention industry
has been under pressure to keep bed spaces filled in other ways. Noncitizens
in immigration detention, whose bed space in both federally funded facili-
ties and local jails is paid for by federal dollars, neatly fill some of the voids
created by the use of more cost-effective and less incarceration-focused alter-
natives in the criminal justice sphere.
Notwithstanding the economic motivations of some special interest
groups, one would not assume that policy makers and the voting public
would automatically buy into the notion that immigration violators should
be warehoused in jails throughout the country. Unsurprisingly, the bal-
looning of immigration detention in the United States went hand in hand
with the rise of toxic rhetoric on migrant criminality and dangerousness.
To take just one example, Representative Orrin Hatch (R-UT), when argu-
ing in support of restrictionist amendments to the immigration laws in
1996, proclaimed that “we can no longer afford to allow our borders to be
just overrun by illegal aliens. . . . Frankly, a lot of our criminality in this
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country today happens to be coming from criminal, illegal aliens who are
ripping our country apart” (142 Cong. Rec. S11, 505 (1996)). Representative
Hatch was far from alone, and was certainly not the worst offender, in
using this sort of language to characterize the threat that migrants posed
to the nation. Those kinds of statements—accusatory, inflammatory, and
unsubstantiated—came to dominate political discourse and media repre-
sentations of migrants in the decade that followed.
Such rhetoric rendered the use of criminal-style detention for migrants
an obvious solution to a phenomenon that was presented as a pressing social
problem. Over time, it also inexorably led to more aggressive reliance on
actual criminal prosecution for migration-related offenses. Immigration-
related prosecutions now make up the single largest category of federal pros-
ecutions each year—over 40 percent of the federal criminal docket (US
Department of Justice 2012). Nor are such prosecutions limited to the fed-
eral criminal justice system. Notwithstanding formal legal doctrine that
denies state and local governments a role in immigration enforcement (Ari-
zona v. United States, 567 U.S. ____132 S. Ct. 2492 (2012)), some states and
localities rely on criminal regulations such as document fraud provisions to
prosecute and incarcerate noncitizens working without authorization.
Human trafficking restrictions have also come to operate as a way to crimi-
nalize migrants at the state level—a somewhat ironic development given the
purportedly humanitarian purposes of antitrafficking laws.
In other words, the growth and normalization of immigration deten-
tion is just one feature of a much broader integration of civil immigration
enforcement and the criminal justice system. Both the civil and the crimi-
nal justice systems have been affected adversely by this integration. On the
civil side, increasingly punitive measures are imposed without the consti-
tutional protections afforded to criminal defendants. And on the criminal
side, procedural protections that generally apply to all defendants—such
as pretrial release on bond and a right to individual adjudication—have
been stripped away in some cases involving noncitizens. Noncitizens in the
criminal justice system are thereby at times denied standard procedural pro-
tections, while noncitizens outside the criminal justice system are some-
times subjected to punishment by another name and without the proce-
dural rights that punishment entails.
In recent years, the wave of panic over migrant criminality has sub-
sided to a certain degree in the United States. In this slightly more tolerant
cultural climate, President Barack Obama’s administration has taken some
specific steps to reform immigration detention. But these ongoing reforms
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