Guest post by Nora Coon and Shannon Garcia, law students at Lewis & Clark Law School, Portland, Oregon. This post is the fourth installment of the Border Criminologies Themed Week on Teaching Immigration Detention organised by Juliet Stumpf

This post questions whether the US asylum system may be improperly affected by racial factors that influence asylum outcomes. It outlines the race-inflected history of detention in the United States, providing context for the current mass detention of Central American women and children seeking asylum in the country. It then evaluates the validity of the US government’s original justification for the detention of Central American women and children: national security. This assessment is a first step to assessing whether that justification may have been a proxy for racial discrimination in the detention of Central American women and children. Finally, the post suggests areas of further research to explore whether racial discrimination maybe hindering the US asylum system.

Credit: Alex Covarrubias, Wikimedia Commons

History of Mass Detention in the United States

Seen in light of historical approaches, the circumstances of detention at Artesia, Karnes, and Dilley raise the question of whether the government’s nationality-based detention in fact deals with a serious national security concern, or serves as a screen for discrimination. The United States is no stranger to mass detention on the basis of race, nationality, and ethnicity. While the most infamous example occurred from 1942 to 1944, with the internment of almost 120,000 Japanese-Americans, immigration and detention have always been closely intertwined with race.

American immigration law historically discriminated on the basis of race, but the discrimination in detention is clear from the policies at Ellis and Angel Islands, the early American immigration processing facilities. Ellis Island operated from 1892 to 1924 and processed over 12 million immigrants, mostly Europeans. Most spent only a few hours there. The major function of Ellis Island was to process those immigrants entering into the United States, rather than to detain them.

In 1910, the United States constructed Angel Island, which served a different purpose for a different population. The government used Angel Island to detain Chinese immigrant laborers, often as a precursor to deporting them. Unlike Ellis Island, where 98% of those briefly detained were admitted to the United States, Angel Island, as described by Roger Daniels, in his book Guarding The Golden Door, ‘existed to isolate and to impede the immigration of Chinese and, to a much lesser extent, Japanese and other Asian’ immigrants. Certainly, many Americans disliked the idea of Southern and Eastern Europeans like Italians, Jews, and Poles immigrating to the United States, but Ellis Island didn’t reflect those feelings in the same way that Angel Island would reflect hatred of Asian immigrants. Angel Island and the Chinese Exclusion Law that supported it, according to Daniels, came about as a result of nativist panic about a ‘Mongolian’ takeover of the Pacific Coast. Organized labor was aggressively hostile to Asian immigration, believing that they would steal jobs.

The panic over Chinese immigrants later expanded to encompass Japanese and Filipino immigrants. From 1890 to 1910, the Japanese population in the United States grew from 2,000 to 75,000. As the numbers of Japanese immigrants grew, so did anti-Japanese sentiment. After the attack on Pearl Harbor, the United States government issued Executive Order 9055, mandating the internment of almost 120,000 Japanese-Americans. The order extended not only to Japanese nationals, but to their American-born children as well. In fact, of those detained, 85,000 were American-born and the majority of the rest were long-term US residents who weren’t allowed to naturalize as a result of anti-Asian immigration laws.

Far fewer Germans and Italians were detained. The detention extended only to some German and Italian nationals, rather than all individuals with German or Italian heritage. After the United States entered World War II, a few hundred detainees arrived at Ellis Island each month, primarily Germans and Italians. Compared to the sudden long-term detention of nearly 120,000 Japanese-Americans, this detention was fairly limited in scope and typically lasted only one to four months.

The difference in scope and conditions of detention between the German and Italian detainees and the Japanese-American detainees illustrates the United States’ use of national security concerns to justify disparate treatment based on race. All Japanese, German, and Italian noncitizens were declared ‘alien enemies’ in December 1941. However, only 7,000 Germans and 3,500 Italians were arrested, 1,200 of whom were actually alien seamen, and in October 1942 the US government withdrew its designation of Italians as alien enemies.

In contrast, all persons of Japanese heritage in the United States, whether citizens, longtime residents, or aliens, were rounded up and placed in camps. Over two-thirds of those interned were US citizens. One hundred and twenty thousand Japanese-Americans, some 80,000 of them US citizens, were held captive for years. Japanese-American internees were also required to complete ‘loyalty questionnaires.’ In Korematsu v. United States, the US Supreme Court condoned the Japanese detention policy. The Court has never overruled Korematsu, though the US government has conceded that its position in that case was wrong.

A more recent example of the use of national security justifications for disparate treatment is the US government’s decision to detain Haitian immigrants fleeing economic collapse and civil war, rather than following its previous policy of ‘paroling’ unauthorized entrants into the community pending an asylum decision. Instead of paroling the Haitian asylum-seekers, the US government detained them at Guantanamo Bay. This was a marked difference from the government’s approach to Cuban refugees. The black Haitians were detained while the lighter-skinned Cubans entered the United States. While the disparate treatment may have been at least partly due to the American desire to welcome individuals fleeing communism, it also fit into the larger pattern of race-based immigration detention policies. The blanket detention of Haitians seeking asylum was ultimately justified by the Attorney General in Matter of D-J- as based on national security concerns in a decision that would primarily affect non-white individuals.

After the September 11, 2001 terror attack on the United States, the government implemented nationality-based detention policies that supporters attributed to national security concerns and opponents described as racial discrimination. Between 1,200 and 2,000 Arab, Muslim, and South Asian men were detained. The Office of the Inspector General determined that the government ‘made little attempt to distinguish’ between individuals suspected of terrorism and those simply captured in the broad sweeps, which heightened concerns that the detainees were held on the basis of their race. Many of the individuals were detained and interrogated after an order of removal.

Although the government ultimately deported many, it charged none with terrorism. On the one hand, the detention and interrogation occurred after a serious terrorist attack, and the individuals detained came from countries closely linked to the terror attacks. On the other hand, the broad sweep of the detention and deportation raised the specter of racial discrimination and panic. Like the detention of all Japanese individuals, citizen and non-citizen, after Pearl Harbor, mass detention of individuals with no link to the terrorist attacks beyond their race suggested racial considerations rather than legitimate national security concerns.

US Navy photo by Spec. Elizabeth Allen via Wikimedia Commons

History's Lessons

The United States’ long history of detention policies based on nationality, ethnicity, and race provides context for the current immigration detention situation. This history reveals that at times the government discriminates on the basis of nationality, while offering facially legitimate national security concerns, as the government argued after the September 11 attacks. In other times, the government seems to use national security as a justification for racially discriminatory policies, as in the Japanese internment camps.

This history raises the question of whether national security, or some other factor such as race, ethnicity, or nationality, is driving the current detention of mothers and children from Central American countries. The Obama Administration has proffered two security-based rationales: an alleged link between increased Central American migration and terrorist access to the United States, and national security vulnerabilities allegedly created by reallocation of border security resources to address the Central American migration.

Neither justification holds up under scrutiny. There is no evidence that the increase of Central American migration has allowed terrorists to enter the country. While the number of Central Americans arriving at the southern US border doubled in 2014, those arriving were distinguishable from potential terrorists in that the vast majority were mothers and children. Furthermore, there are no data to suggest a link between Central America and international terrorist organizations. The State Department’s most recent annual report on terrorism doesn’t identify any known terrorist organizations anywhere in the Western Hemisphere. The most recent report on terrorism in Latin America to come from the Congressional Research Service doesn’t include Central America in its findings. Further, the Department of Defense’s Southern Command produced a comprehensive posture statement on potential regional terrorist threats and concluded that Central America doesn’t pose such a threat to national security in the US. These reports suggest that fear of terrorism from Central America is misplaced and only serves to enforce immigration policy more stringently against Central American women without just cause.

The second justification―that directing resources to the southern border creates national security vulnerability elsewhere―is similarly unsupported. In February, a federal court in Washington, D.C. held that ‘[t]he simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security.’ Such a diversion of resources only becomes a concern during times of national security disasters, such as 9/11, when performing asylum-related background checks threatens to divert resources away from ongoing national security efforts. 

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How to cite this blog post (Harvard style)

Coon, N. and Garcia, S. (2015) On Justifying Family Detention: Racialization and National Security. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2015/09/justifying-family (Accessed [date]).