Guest post by César Cuauhtémoc García Hernández, visiting Professor at the University of Denver Sturm College of Law, author of crImmigration.com blog.

Immigration detention in the United States has reached gargantuan proportions. Every day approximately 33,000 men, women and children are confined while waiting to learn whether they will be allowed to remain in the country. Over the course of the 2011 fiscal year roughly 429,000 people were confined in an immigration detention facility. To house so many individuals, the federal government has turned to a vast network of over 200 facilities spread throughout the country. Many of the largest of these facilities are in rural communities many hours from the urban centers that feature robust legal advocacy networks and often thousands of miles away from the cities and towns in the United States that they call home. Though the government stridently denies that this is its goal, detained immigrants are isolated in virtual islands; they are removed both from social support networks and from legal services that could be of help during the convoluted process that will determine their fate.

Main entrance to Karnes County Civil Detention Center Source: U.S. Immigration and Customs Enforcement
Uncomfortable with the designation “prison” or “jail”, governmental authorities go out of their way to describe immigration detention facilities as anything but. Sometimes they are called “detention centers”; other times “processing centers”. Most recently, the Immigration and Customs Enforcement agency, the division of the U.S. Department of Homeland Security tasked with operating the country’s sprawling immigration detention network, has selected “civil detention center” as its moniker of choice.

The wordsmithing that government officials engage in to keep their facilities from being described as prisons or jails is indicative of immigration detention’s legal characterization. As a formal matter of law, immigration detention is a type of civil confinement. A century’s worth of decisions from the U.S. Supreme Court has reiterated this point. Consequently, much of immigration detention occurs without the legal constraints typically imposed on the government when it deprives a person of liberty. Immigrants can be detained without speaking to an attorney, for example, and detention is regularly imposed without inquiring whether that particular person poses a public safety or flight risk.

It is time to reconsider the premise that immigration detention is not punishment. Several scholars have recently started down this analytical trajectory claiming, in effect, that immigration detention ought to be considered punishment because it looks and feels like punishment. I am sympathetic to such functionalist critiques. In my current research project, however, I develop a more formal approach grounded in Congress’s reasons for authorizing detention as a means of enforcing immigration law.

Polk County (Texas) Immigration Detention Facility Source: MotherJones.com Photo Credit: Detention Watch Network
During a period of approximately fifteen years spanning the early 1980s to the middle of the 1990s, Congress repeatedly enacted legislation that now forms the legal authority for the nation’s immigration detention regime.  A close review of these statutory enactments and the legislative milieu in which they arose reveals that Congress viewed immigration detention as a means of targeting criminal activity—specifically, the illicit drug activity then sweeping political halls and popular media as the “war on drugs” blossomed. Indeed, much of the foundational immigration detention legislation was enacted in statutes that were explicitly billed as anti-drug laws. The Anti-Drug Abuse Act of 1986, for example, in the same breath as increasing criminal penalties for drug crimes, granted immigration officials the power to request that state and local police forces detain a person for up to 48 hours for no reason other than that the person was thought to lack permission to be in the United States and was arrested for any violation of a drug offense. Two years later, the Anti-Drug Abuse Act of 1988 similarly targeted criminal drug activity and also introduced the concept of the “aggravated felony” into immigration law and rendered anyone allegedly convicted of an aggravated felony subject to mandatory detention—even an immigration judge lacks authority to release such a person. Both detention authorization provisions play a critical role in the government’s current immigration detention operations, and both constituted one facet of laws generally designed to punish drug offenders.

At the start of the 1990s, then-President George H.W. Bush’s objectives exemplified policymakers’ entangled approach to immigration law and anti-drug initiatives. In a statement accompanying his signing of the Immigration Act of 1990, an act that increased the authority of immigration agencies to engage in anti-drug activity while also increasing the likelihood that a person convicted of drug crime would end up in immigration detention, President Bush explained, “[this act] meets several objectives of my Administration’s war on drugs and violent crime. Specifically, it provides for the expeditious deportation of aliens who, by their violent criminal acts, forfeit their right to remain in this country.” People who, he added, “jeopardize the safety and well-being of every American resident.” And, he went on, it improves the federal government’s “ability to secure the U.S. border—the front lines of the war on drugs….

Immigration and drugs, it would seem, had come to be viewed as two features of a single danger. Legislators responded by expanding the state’s imprisonment authority. Given this, it is no wonder that immigration detention soon came to share the hallmarks of penal confinement. Most of the facilities that ICE relies on to house its detainees are in fact jails and prisons built to house people being punished for criminal activity; many house immigration and criminal detainees alongside one another. In fact, immigration detention facilities can even utilize some of the harshest features of penal confinement—strip searches and solitary confinement.

The current scope and state of immigration detention in the United States alone reveals that its civil characterization is farcical. Nonetheless, courts remain reluctant to shift course. The legislative history that I address, however, suggests an opening for reexamining the civil confinement premise. In United States v. Salerno, the U.S. Supreme Court instructed that “[t]o determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent.” My hope is that an honest assessment of Congress’s intent in enacting the legislation that currently authorizes immigration detention—an intent to further punish drug offenders as part of the now widely condemned war on drugs—will reveal law’s insistence that immigration detention is civil for the quaint myth that it is.

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How to cite this blog post (Harvard style):

García Hernández, C C (2013) Questioning Immigration Detention's Legal Characterization. Available at: http://bordercriminologies.law.ox.ac.uk/questioning-immigration-detention/‎(Accessed [date]).