Problems and Solutions for American Immigration Detention
University of New Haven
The United States has a tumultuous history on immigration, due to the dichotomous nature of xenophobic and biased public opinion married with a constant need for labor. Over time, immigration policies encouraged certain ethnic and racial groups while excluding others. In addition, public officials often complained about immigrants who did not assimilate, and eventually the United States married immigration with the criminal justice system.
The standards and procedures of the last several decades have led to mistreatment, abuse, and a myriad of other issues for immigrants to address as they attempt to navigate their way towards citizenship or asylum. A summary of the literature will provide a brief history of immigration in America, as well as the increased use of detainment. This essay also focuses on the dangers of sexual violence within detention facilities, the increasing number of immigrants being detained for extended periods of time pretrial, and the effectiveness of increased advocacy for detained immigrants.
History of Immigration in the United States
American history is synonymous with immigration, a founding principle on the success of the nation. Historically, approximately two-thirds of all immigrants from Europe have migrated to America (Jones, 1960). Beginning in the 17th century, colonists and travelers began to make America their new home, and eventually 13 colonies established independence from Great Britain — which consequently encouraged a homogenic detachment from ethnic backgrounds and identity as Americans (Jones, 1960). Even in the early days of America, immigrants could be met with hostility, with colonial laws in the 1700s that tried to restrict immigration and prejudices against certain religious groups settling into the cultural zeitgeist (Jones, 1960). Founding father Benjamin Franklin expressed his frustration with immigrants in his home state of Pennsylvania, calling them ignorant and stupid, while complaining that they did not learn English (Gerber, 2011).
Despite this history, immigration always has been viewed as an economic asset, with the federal government having a tremendous appetite for immigrant labor throughout the centuries (Gerber, 2011). When states tried to impose taxes on immigrants who just arrived on America’s shores, the Supreme Court declared this unconstitutional and decided immigration policies fell under federal control (Gibbons v Ogden, 1824). In immigration case decisions, Supreme Court justices wrote of immigration as a cherished policy of American history and encouraged the free movement of people between continents (Brickner & Hanson, 2003). Early in America’s existence, an open border policy was presumed, and the federal government did little to direct policy aside from tracking the immigration population’s growth (Gerber, 2011). The Naturalization Law of 1795, which only applied to white persons, laid out the process of becoming an American citizen. This was a 5-year process requiring a renouncement of other allegiances and satisfying a court that the individual believed in the American Constitution. Eventually, the 14th Amendment extended citizenship processes for formerly enslaved African Americans by creating birthright citizenship, a controversial policy that gives citizenship to any American-born children of foreign parents (14th Amendment; Gerber, 2011).
The 1800s produced tightened immigration policies, as population numbers swelled and anti-immigration sentiment rose. The 1891 Immigration Act centralized immigration strategies, establishing Ellis Island as the first detention station for new immigrants to be received and tested both medically and intellectually (Gerber, 2011). New laws did more than just organize the system, with the Chinese Exclusion Act giving the U.S. the power to track and deport Chinese immigrants, while implementing a halt of any new Chinese individuals from entering the country for a decade (Chinese Exclusion Act, 1888). Raids also were aimed at Russian and other Eastern European immigrants out of growing fear of communism. As America entered the 20th century, so too did new restrictions for immigrants (Brickner & Hanson, 2003). New laws placed quotas on the number of immigrants allowed (based on national origins of the new migrants), created literacy tests that barred the acceptance of any who failed the exams, and banned entire ethnicities from relocating to the United States (Immigration Act of 1914; Immigration Act of 1924).
As a result of these laws, the immigrant population overwhelmingly was represented by Northern and Western European countries, with significantly less Eastern European and Asian immigrants (Brickner & Hanson, 2003). This was due to a widely held belief in both Congress and the public that Western European immigrants could best adapt to a democracy, as they more often represented the same racial and religious backgrounds as the White Americans who made up the majority of the country (Brickner & Hanson, 2003). Just as Anglo-American Protestants strived to maintain cultural authority over Roman Catholics in the 1800s, fearful countries like Ireland essentially would be tools and agents for the Church, as Roman Catholics worked to limit the influence of Eastern European and Asian individuals (Gerber, 2011).
Immigration from Mexico rose during the first half of the 20th century, and stereotypes of Mexicans being uneducated, dirty, diseased, criminal, and lazy caused a halt to visa processing and generated an institution of taxes for Mexican immigrants (Gerber, 2011). With the massive departure of manpower in the American workforce caused by World War II, however, these policies were reversed, and Mexicans were utilized for cheap agricultural labor throughout the country (Gerber, 2011). Fear-based immigration policies like those from the Red Scare continued during World War II. In 1942, after America declared war on Japan, tens of thousands of Japanese Americans were deported from their homes and detained in concentration camps throughout the country (Daniels et al., 1991). After World War II, quotas were replaced with total limits per country; however, in 1978 country-limits were abolished and replaced with worldwide limits (Brickner & Hanson, 2003).
In the second half of the 20th century, high numbers of immigrants from Asia and Latin America resulted in Congress passing laws encouraging legal immigration, while simultaneously focusing on more punitive actions for illegal immigrants (Brickner & Hanson, 2003). By 1990, 60% of the population growth in the United States was attributed to immigration, and most migrants were motivated by employment opportunities that were not available in their home nations (Gerber, 2011). Nevertheless, restrictions continued. After the 9/11 terrorist attacks, the Patriot Act established new procedures for which individuals of Arab, Middle Eastern, and Muslim descent could be removed from America, provided the Attorney General more discretion in labeling and monitoring someone a terrorist threat, and made detainment a requirement for immigration applicants from multiple Middle Eastern countries (Patriot Act, 2001l; Brickner & Hanson, 2003).
Furthermore, Mexican immigrants became the focus of anti-immigration sentiment, while also becoming a crucially relied upon part of the workforce in the 21st century. Many Americans believed Mexican travelers could not assimilate and represented lawlessness, while the same immigrants contributed in huge numbers to the agricultural labor force (Arnold, 2014). Community organizing led to public pressure from elected officials to avoid coming off as “soft” on immigrants and those who were living and working in America illegally (Arnold, 2014). As undocumented immigration numbers continued to rise, President Bill Clinton signed laws establishing harsher sanctions, including a protocol of detaining undocumented immigrants (Illegal Immigration Reform and Immigrant Responsibility Act, 1996). In 2003, the Immigrations Customs Enforcement (ICE) agency was established to enforce immigration laws from the Department of Homeland Security and oversee the detainment and detention of immigrants. Since that time, ICE has worked to create hundreds of detention centers across the country (Haddal, 2010). Detention centers holding immigrants from the Southern border have been characterized by rampant abuse and mistreatment (Arnold, 2011). Despite these trends, the Hispanic population is the fastest growing segment of the U.S. population and is expected to make up a quarter of the nation by 2050 (Gerber, 2011).
Use of Detention Facilities
Immigrant detention facility populations began to expand in the 1970s, from a daily average of approximately 2,000 to 55,000 as of 2019 (Saadi et al., 2020). Periods of national fear, like the War on Drugs and the War on Terror, have seen immigration detention spikes, though detentions have been rising consistently since the second half of the 20th century (Sinha, 2016). The Reagan administration's solution to an increasing flow of predominantly Latin American immigrants was to create immigration detention centers across the United States, heighten border security, and enlist the help of private prison companies to oversee detention facilities (Schull, 2021). Federal rights like legal representation were not applied to immigrants detained in these new facilities, as the detention system functions under civil law, so many detained immigrants were confined for indefinite amounts of time without any government appointed representation (Saadi et al., 2020)
Detainees ranged from asylum seekers, newly arrived immigrants, and legal permanent residents, and these establishments increasingly resembled American jails and prisons, as ICE progressed on this path for “crimmigration” (Schull, 2021, p. 11). The Clinton administration signed laws that established minimum detention requirements and made lower-level crimes deportable offenses (Illegal Immigration Reform and Immigrant Responsibility Act, 1996). Since then, bed quotas at detention facilities have continued to rise. Under President Obama, Congress enacted an over 30,000 daily bed quota, and as more and more non-citizens were detained, the United States entered into more private prison contracts (Sinha, 2016). Grassroot movements have scrutinized these practices. In 2016, when the Department of Justice announced a phasing out of contracts between the federal government and private prison companies, many citizens and politicians pressured the Department of Homeland Security to do the same (Sinha, 2016). ICE agents and border patrol officers condemned this suggestion, saying it would lead to issues of overcrowding. After President Trump took office, immigration detention numbers continued to soar (Sinha, 2016; Cho et al., 2020).
Since 2017, ICE has opened 40 new detention centers, for a total of 220 immigration prisons in the country (Cho et al., 2020). In 2019, four of the largest detention centers denied every single asylum claim, with one ICE field office in New Orleans denying over 90% of asylum seekers applications for release, even following court orders to grant parole to eligible asylum seekers (Cho et al., 2020). These centers have been reported to exhibit under-staffing issues, lack of proper medical care for inmates, and inhumane treatment of detainees, including long periods of solitary confinement and sexual assault (Cho et al., 2020). There was international condemnation of a Trump administration policy that separated families at detention centers, violating human rights law. Although it ended in 2018, more than 500 families struggled for years to reunite (Deswal, 2020). Under the current Biden administration, two separate detention facilities have been closed, but no other significant changes have occurred, as detention numbers continue to rise (Marcelo & Herbert, 2021).
In the past several years, both the public and the federal government have placed pressure on the Department of Homeland Security to alleviate dangerous levels of overcrowding and prolonged detention stays, for adults and children alike (Martinez, 2021). Indefinite detention stays are becoming more common for noncitizens who unlawfully enter the United States, and for those who seek asylum and protection from the dangers of their country of origin (Martinez, 2021). The immigration system is overwhelmed far beyond detention facilities, with a significant backlog of immigration court dockets (more than 1 million existing cases), forcing immigrants facing a pending removal into detention for undetermined amounts of time (Martinez, 2021).
Non-citizens who are detained and awaiting a judge’s decision on their status can be locked in facilities for many months, with court dates pushed years ahead due to an overwhelmed system and few options for pretrial release (Martinez, 2021). Bonds are one of the most common solutions to an indefinite pretrial detention, an option available to all noncitizens in theory, but exceedingly difficult to procure in practice. Like bail in the criminal system, bonds in the immigration system exist to create a reassurance the noncitizen will appear in court at their trial date (Martinez, 2021). Immigration judges weigh many factors when determining bonds, including danger to the community, evidence of rehabilitation, and flight risk; however, proportionality is not the same in both systems (Martinez, 2021). On average, criminal defendants pay 10% of their bail amount to be released, whereas immigration detainees typically are required to pay the total amount of their bond in cash upfront (Martinez, 2021). In recent years, the DHS and immigration judges have denied more bonds and imposed higher and higher bond amounts. The average bond was less than $2,000 in 2005, compared to $10,000 or more by 2018 (Martinez, 2021). Noncitizens are added into a more costly and restrictive system, often without any resources at their disposal to help their case, including access to counsel. Importantly, studies have shown the odds of a favorable outcome in bond determination for a detained immigrant are higher when they are assisted by attorneys (Martinez, 2021).
Additionally, evidence shows a detained immigrant faces a better chance of a reasonable bond amount and a non-detainment decision when the judge has more information available for a defendant, something legal representation could assist in providing (Martinez, 2021). One of the reasons an immigration judge may set a high bond amount is to serve as a deterrent in reducing the chance the defendant will not return for their court date. However, studies have revealed a higher bond amount is ineffective in increasing a noncitizen's propensity to appear in court (Martinez, 2021). In fact, higher bond amounts produce a modest increase in a removal proceeding being conducted with an absent defendant, weakening the argument that setting high bonds reduces flight risk (Martinez, 2021). Indefinite detention and rising bond costs are added struggles noncitizens experience while trying to navigate the immigration system, and research suggests the effects of both have little impact on encouraging voluntary departure or reducing absent detainee hearings.
Perera and Pugliese (2021) compared detention facilities in America and Australia, revealing similarities in sexual assaults and harassment experienced by detainees. The authors argued conditions in these detention facilities constitute modern day slavery, with “unfreedoms” that continue to govern minority populations and asylum seekers, rooted in the colonialist traditions on which both of these nations were founded (Perera & Pugliese, 2021, p.76).
The concept of indefinite detention has been utilized by the United States long before immigration reform, as America had been in the habit of locking up individuals for an unspecified amount of time since the 18th century (Folmsbee, 1949). During slavery, African Americans could be punished however a white owner saw fit. After slavery was abolished, a gap in the southern labor market led to the creation of the Jim Crow Laws, which gave white law enforcement the ability to imprison black citizens for crimes as vague as vagabondness (Roback, 1984; Folmsbee, 1949). This culture of violent colonialism, threaded into the tapestry of building a nation, is not only displayed in the United States but other imperialist countries as well. Australia, for example, used indefinite detention to maintain dominance over its colonies (Strakosch, 2019; Perera & Pugliese, 2021). In the same way America exhibited violent methods to control African Americans, Native Americans and immigrants from the southern border have been controlled and violated showing a continuing trend (Perera & Pugliese, 2021).
America and Australia both outsource immigration detentions to private contractors, and reports have uncovered serious mistreatment of detainees, including sexual harassment and assault (Triggs, 2014; Human Rights Watch, 2010). Australian immigrant detainees have described being forced to strip and pose naked to get access to basic necessities like soap or a hot shower, and American immigrant detainees have detailed being watched and photographed as they showered, without their consent (Triggs 2014; Human Rights Watch, 2010). Immigrant detainees also have been the victims of rape by both prison staff and other inmates, underscoring the lack of safety in every aspect of life for detainee victims (Stop Prisoner Rape, 2006).
Transgender and LGBTQ inmates are often exposed to extreme sexual violence and harassment. One pre-operative transgender American female detainee detailed being threatened if she did not follow a male inmate with her to the bathroom, where he raped her, with a staff member walking by and laughing as the rape occurred (Stop Prisoner Rape, 2006). Overall, sex is not only used as a punishment, but also as a type of currency in many of these institutions, creating an underground market where inmates’ bodies are bartered by staff or fellow detainees to get a phonecard, cigarettes, or drugs in return (DIBP, 2014; Perera & Pugliese, 2021). This commodification of sex and frequent abuse of detainee’s bodies in private detention centers can be linked to the commodification of people that America and Australia were founded upon (Perera & Pugliese, 2021). This can be seen further in the minimal sanctions handed out to staff members who engage in this abhorrent behavior, another common thread between the two countries (Perera & Pugliese, 2021). In many privately owned Australian detention centers, guards are reassigned or relocated once a complaint is made known, but before any punishment can be instituted (Perera & Pugliese, 2021).
In America, even if guards end up being fired for their misconduct, the Department of Justice often does not pursue criminal charges that should be handed out following a sexual assault or rape (Stop Prisoner Rape, 2006). Additionally, solutions or protections created by the facility for detainees following a sexual assault can amount to long stays of solitary confinement, arguably creating even more trauma for these victims (Stop Prisoner Rape, 2006; Grassian, 2006). Some female inmates have taken to alternative ways of protecting themselves, deciding to wet the bed rather than go to the bathroom at night and risk the chance of being sexually assaulted (Perera & Pugliese, 2021).
With rampant abuse and mistreatment of detainees, solutions and improvements to immigration detention are desperately needed. The Community Visitation Program (CVP), a network of advocates visiting detained immigrants in facilities throughout the United States, has provided benefits for struggling immigrants (Romero, 2021). The immigration system is deeply complex and complicated, and immigrants or refugees coming to America with a limited understanding of the language and weak financial resources can find an advocate as their only hope in navigating the system (Ryo & Peacock, 2018; Romero, 2021). CVP works with a grant program comprised of more than 4,000 volunteers visiting 57 detention facilities in 23 states, and it has been shown to provide a necessary service to detainees who consistently struggle with abuse and isolation (Romero, 2021). Immigrants are subjected to solitary confinement daily in facilities across the country (approximately 300 cases a day in 2013), and research indicates these conditions lead to mental and physical trauma (Shahshahani & El-Sergany, 2013; Grassian, 2006). This, coupled with rampant abuse, subpar medical treatment, and isolation from family and friends, leads to social isolation, and a crucial need for an advocate to fight on their behalf outside the bars of their cell (Romero, 2021).
CVP volunteers are trained to listen, maintain a non-threatening demeanor, and allow the detainee to guide their conversations, as well as explain their role and powers clearly so each detainee has an accurate understanding of what the volunteer can and cannot do for them (Romero, 2021). A volunteer provides social and emotional support, and detainees have reported their volunteer is the only person who comes to see them. Family members may not know where they are located, or detainees may have been sent outside the area of where family could visit (Romero, 2021). Often volunteers are able to assist immigrants in being released from facilities, but many detainees say the support of feeling heard is also hugely helpful, underscoring how isolated and alone many immigrants feel in these facilities (Romero, 2021). Of course, being listened to is not enough, and CVP has helped bring a national eye to individual cases and put enough pressure on the facilities to release individuals due to inadequate care. In the case of Laura Monterrosa, for example, a CVP volunteer shared Monterrosa’s account of being sexually assaulted and placed in solitary confinement. Calls from politicians and public scrutiny led to Monterrosa’s release, as well ending the private contract at the detention facility in which Monterrosa was being held.
Conclusions and Implications
Immigration policies throughout American history have been rooted in the contradictory nature of encouragement and exclusion. The need for immigrant labor contrasted with xenophobic sentiments, leading to a contentious and intense debate of policy both in the public arena and by elected officials. Sexual violence and indefinite pretrial detainment are significant issues, and the solution of enhanced advocacy has been both suggested and practiced, in efforts to combat the abuse and mistreatment hundreds of immigrants suffer every day in the United States.
The pretrial detention population is continuing to rise, as the immigration court system maintains an overwhelming number of cases. Issues like lack of legal representation and rising bail costs have contributed to the bloated system, but these issues could be addressed in order to develop solutions (Martinez, 2021). One of the implications of Martinez’s work is that providing detained immigrants with access to lawyers, like the United States has done in the criminal court system, would lead to less immigrants, asylum seekers, and noncitizens detained for extended periods of time. Furthermore, bond amounts do not increase the likelihood of an individual appearing in court, so raising bond costs as a deterrent so noncitizens appear in court is not an effective or worthwhile solution.
When it comes to the issue of sexual violence, Perera and Pugliese’s (2021) research indicates that countries rooted in colonialist history need to reckon with the similarities of treatment of detainees compared to slaves. The implication of this work is that the manipulation, degradation, and abuse of bodies through sexual violence mirrors the control of the state and the debasement of individuals on the state’s behalf that existed during colonialism.
Finally, Romero’s (2021) research on the Community Visitation Program reveals the necessity and success of enhanced advocacy for immigrants, noncitizens, and asylum seekers who are detained and separated from any support system (Romero, 2021). Volunteers work effectively as advocates for detainees, and in many cases detainees in the program have been able to gain release. This includes those who were victims of sexual violence and were able to cast enough light on their facility to ensure contracts were not renewed.
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