America’s Obsession with Locking Up Immigrants



America’s Obsession with Locking Up
Para Jesús María García, que en paz descanse, y Eufrocina H.
I know that what I am asking is impossible. But in our time,
as in every time, the impossible is the least that one can
demand …
—James Baldwin
Part I: Then
1: Laying the Groundwork
2: On the Prison’s Edge
3: The Resurgence of Immigration Prisons
Part II: Now
4: The Immigration Prison Archipelago
5: The Good Immigrant vs. the Bad Immigrant
6: The Money
Part III: Toward a Different Tomorrow
7: Abolishing Immigration Prisons
By the time Diego Rivera Osorio was three years old he
was already a veteran of immigration prisons. He had spent
most of his life locked inside the Berks Family Residential
Center, or “baby jail,” as critics call the one-hundred-bed
facility northwest of Philadelphia where Immigration and
Customs Enforcement (ICE) confines mothers and their
children. Two years earlier, Diego’s mother, Wendy Osorio
Martinez, had fled threats of kidnapping and assault in
Honduras, bringing Diego with her to seek asylum in the
United States. “We came here because the United States is
safe. It has laws,” Wendy said.1 But on crossing the Mexican
border in 2015, they were caught by Border Patrol agents
and sent to the Berks facility.
An hour away, Judge Walter Durling heard the
deportation cases of many Berks families in the York,
Pennsylvania, immigration court. A former Marine and
government lawyer, Judge Durling was no bleeding heart.
He denied three-quarters of all asylum applications he
decided, well above the 57 percent national average. Over a
period of two years, Judge Durling saw Diego on his docket
sheet several times, and even to him, Diego was a different
story. Diego, the judge wrote in August 2017, “has gone
from diapers to detention in his young life with no
understanding or exposure to life beyond secure custody.”
In that time, Diego had won a special visa for children, but
the federal government didn’t relent, and it still tried to
deport him. With the help of pro bono lawyers, he resisted
long enough for a federal appeals court to take his side.2
Wendy didn’t have an easy time either. Her asylum
application was turned down. Fearing return to Honduras,
she continued asking courts to reconsider.
While the wheels of justice slowly turned, Diego and
Wendy remained in Berks until, finally, Judge Durling
ordered their release, noting that, in his short life, Diego had
spent 650 days in jail “with no end in sight.” That night,
sitting inside a Mexican restaurant at a table so high he
could barely reach the food, Diego ate the first meal outside
Berks that he could remember. Now mother and child live
with a relative in Houston, waiting for the courts to decide
their fate.
Diego’s situation is alarming, but it’s not unique.
I grew up in South Texas, four hours south of San Antonio in
the southeast corner of the state, where the Rio Grande
meets the Gulf of Mexico. It’s hot, poor, and overwhelmingly
Mexican, and in the 1980s it was a hub for newly arrived
migrants. In particular, Central Americans fleeing civil wars
made their way to the Rio Grande Valley by the tens of
thousands. Working with Congress, the Reagan
administration responded with money, federal law
enforcement officers, and immigration prisons. The Valley
became an immigration battleground.
In the farmworker housing project where my family lived,
Reagan administration directives were not distant policy
debates. They were life-and-death developments about
people we knew: relatives, friends, friends of friends. As a
child, I experienced the rise of a security-focused
immigration policy mostly through overhearing adult
conversations. Sometimes it took the form of a tío, an uncle,
sleeping on a couch as he rested on his way up north. Other
times it was my parents worrying about whether my
grandfather’s English was good enough to get him across
the border. In the days before passports were required to
get into the United States, his U.S. citizenship didn’t
guarantee he could return.
By the time I was a newly minted lawyer, I thought I was
familiar with the region’s role in the story of U.S.
immigration, but it wasn’t until I drove down Farm-to-Market
Road 510 for the first time that I entered a part of the
immigration-law world that I hadn’t known existed.
Every year, thousands of mostly white retirees take the
out-of-the-way two-lane FM 510 to the Laguna Atascosa
National Wildlife Refuge to see the animals: the snow-white
egrets, the redhead ducks, the bobcats, even the ocelot—
recently hovering near extinction—making their homes in
the thickets of native bamboo. At the same time, migrants
unwillingly travel the same route. Forced onto buses
emblazoned with the Department of Homeland Security’s
seal—an eagle clutching an olive branch in one talon and
arrows in another—migrants peer out from behind dark
windows and through metal bars. It’s a prison on wheels
delivering migrants to the Port Isabel Detention Center, a
1,200-bed facility tucked between the wildlife refuge, a
crop-duster airport, and the salty edge of the Gulf of Mexico.
The wild beauty stops at the facility’s guardhouse, where
standard-issue prison architecture begins: chain-link
fencing, concertina razor wire, layer after layer of security
screenings, and steel doors. Inside, migrants are handed
jumpsuits color-coded to reflect their security classification:
yellow for people who present a low security risk, blue for
medium, and red for high-risk migrants. From year to year
or facility to facility, the colors change, but the rationale for
them doesn’t: there’s no one here who doesn’t present a
risk. Walking through metal detectors, with the heavy doors
clanking shut behind me, accompanied by a guard and
constantly watched through surveillance cameras, even I—
an attorney waiting to meet a client—seem to pose a risk.
After days or months there, the migrants are brought into
a small, windowless room and ushered onto long benches.
At the front of the room, a judge presides over dozens of
hearings five days a week. When I made trips to Port Isabel
to represent people who were locked up there, Judge
Howard Achtsam ran things. Migrants called him El Diablo—
The Devil—because he deported just about everyone who
walked into his courtroom. These days El Diablo works out of
a nearby immigration court, but things remain tough for the
Port Isabel detainees. Adding to the misery of confinement,
almost all have to make their case for staying in the United
States without a lawyer. In civil immigration court, there is
no right to a government-paid lawyer. If you have the
money, you can hire one. If you don’t, you’re out of luck.
Gerardo Armijo was one of the few who did have a lawyer
—my brother, who, along with our eldest brother, heads the
law firm I’ve been part of since my days as a new lawyer. I
have a lot in common with Jerry, as his friends call him. We
were both raised in the Texas borderlands about an hour
west of Port Isabel. We were born into a community that is
almost entirely Mexican. We are both Spanish speakers
whose families have traversed the border.
There we part ways. I was born in Texas; Jerry in Mexico.
I’m a U.S. citizen; brought to the United States by his
mother when he was just eight months old, Jerry is a
permanent resident—the final rung before citizenship, but
crucially a step below the citizen status I was born into.
Despite that, the United States is in his heart. While I
finished high school and went off to the Ivy League, Jerry
joined the Army. While I studied in plush libraries, he walked
the streets of Iraq.
Patrolling in a tank one day, Jerry lost several friends to a
bomb explosion. He survived, but the attack took its toll. “I
got back to the Valley, and I was messed up,” he told me,
his soft-spoken words revealing a soul torn between
patriotism and trauma. When he returned to his South Texas
home, the trauma proved too much for the Purple Heart
veteran, and he turned to drugs. Jerry was convicted of
possession and placed in a special state-run rehab program
for veterans. The combination of drug treatment, job
training, counseling, and lenient sentencing for crimes was
meant to get vets back on their feet—a thank you of sorts
for their military service—and Jerry was meeting all the
program requirements. Then, one day, he suddenly stopped
showing up. No one, not his family, his friends, not even his
lawyer, knew where he was. It turned out that he had been
arrested by ICE and sent to the Port Isabel Detention Center.
No one had bothered to tell his lawyer or the judge
overseeing the rehab program.
Cases like Jerry’s highlight how far reaching immigration
imprisonment has become. His military service proved his
love for the United States, but to immigration law, it’s the
passport, not the heart, that matters. The direct link
between Jerry’s warzone trauma and his criminal activity
makes him unusual, but not unique. No one is sure how
many veterans have been thrown into immigration prisons
because of crimes linked to his experiences in combat. War
affects citizen and noncitizen soldiers alike. For migrants
who join the military, though, combat-induced mistakes
shred the hero status veterans return home to and turn
them into what politicians—both Democrats and
Republicans—like to call “criminal aliens.” In this, Jerry is
indistinguishable from many people detained across the
immigration prison network: longtime residents of the
United States convicted of a crime who end up inside an
immigration prison, waiting while they fight the
government’s efforts to deport them.
The rules that determine who gets locked up and who
doesn’t are a legal labyrinth. Most immigration prisoners
face government claims that they don’t belong in the United
States—civil proceedings in which civil infractions are
determined and where the power of criminal law is never
invoked. Under this system, people who do not have the
federal government’s permission to be in the United States
can be detained. Near Mexico, Border Patrol agents walk the
brushland of South Texas and the deserts of Arizona. In
cities far from the border, ICE officers swoop into workplaces
and knock on doors, waking people while it’s still dark. They
have legal authority to arrest anyone whom they suspect of
being in the United States without the required
documentation. Come here to work, but find yourself in the
factory when ICE shows up, and you can be detained. Come
here fleeing for your life and present yourself to a Border
Patrol agent, like many of the families whose stories have
dominated the news cycle under President Barack Obama in
2014 and again under President Donald Trump in 2018 and
2019, and you can wind up on the wrong side of the chainlink fencing and razor-tipped concertina wire.
Yet having permission to be here isn’t necessarily a
guarantee of freedom. Immigration officers can also arrest
anyone who came here for a temporary stint with the
government’s permission, and then stayed. And they can
arrest anyone like Jerry, whom immigration lawyers refer to
as a lawful permanent resident but most everyone else calls
a green-card holder. He has the right to live and work in the
United States indefinitely—even to drive U.S. tanks in U.S.
wars—until he crosses paths with the criminal justice
Arrest marks the beginning of a legal process that often
takes years to complete. People caught by ICE and accused
of clandestine entry can go before an immigration judge, as
do permanent residents with their varied lives, their jobs,
financial struggles, families, and traumas. People
apprehended near the border who can’t prove that they
have been in the United States longer than two weeks can
be summarily removed—a procedure known a expedited
removal, which in the summer of 2019 Trump officials kicked
into overdrive and applied to anyone caught anywhere in
the United States. The one exception is for people who have
fled persecution. U.S. law says anyone who is physically
present in the country can tap the legal safe harbor of
asylum to avoid persecution in their home country. In this
case, a specialized asylum officer employed by the U.S.
Citizenship and Immigration Services agency, one of the
tentacles of the Department of Homeland Security, takes a
first look, and migrants who show a credible fear of
persecution get scheduled for an immigration judge’s
Some migrants are freed, either through the luck of an
enforcement officer’s grace or by convincing an immigration
judge that the public won’t be imperiled and release won’t
result in no-shows for court dates. Others have to stay
locked up because Congress has declared that some people
are too dangerous to be allowed free while the immigration
court process slowly chugs forward. Edafe Okporo, a gay
student activist, fled his native Nigeria after homophobic
thugs robbed and beat him. In a memoir written years later,
he recalled a mob breaking down his door, angrily yelling
about the need to cleanse the community with his blood.
“The men gripped me by my wrist and dragged me out of
my house, but I could not scream. I knew no one would help
me because they were all on the same side.” Fleeing to New
York, he was immediately detained while his asylum case
made its way through the immigration court system. “What
had brought a man running for his dear life into a jail?” he
asked. “I had a visa; I had never been to the States before,”
he explained. The answer is as simple as it is perplexing:
immigration law treats asylum-seekers as worthy of
confinement. By the time an immigration judge ordered his
release, he had spent “2,422,000 minutes in the womb of
immigration detention,” he wrote.3
Where the power of civil law ends, the power of criminal
law begins. In addition to civil confinement, migrants are
locked up because the government says they committed a
crime by coming to the United States. Back in 1929,
Congress adopted two crimes about migration: illegal entry,
which punishes those entering the United States without the
federal government’s permission; and illegal reentry, which
punishes those doing that after having been deported. Both
were largely ignored for most of a century. But since the
George W. Bush years, they have come into fashion. These
days, illegal entry and illegal reentry make up the crimes
that federal prosecutors pursue most often. In fiscal year
2018 alone, 105,692 people were prosecuted for a federal
immigration crime.4 Defendants charged with these
immigration offenses end up jailed while they wait for the
courts to hear their cases more often than do defendants
charged with any other federal crime. They are locked up
more often than people accused of violence, and they’re
imprisoned more often than people suspected of the kind of
white-collar crimes that might leave them with cash to
disappear with.
To federal immigration agents, people like this are viewed
as posing a danger, but to Cecilia Equihua they are just
ordinary people like her father, Francisco. A divorced father
of two, Francisco lived in Los Angeles but frequently drove
to Las Vegas, where Cecilia and her sister lived with their
mother. In late 2010, Francisco made what would be his final
roundtrip drive, leaving Los Angeles early in the morning
and heading back late that afternoon. When he was pulled
over for a busted tail light, police officers noticed a decadeold deportation on his record. “My father was arrested in
1997,” wrote his daughter Cecilia, at the time a law student
and now an L.A. public defender. “He told me because of his
financial struggles to support us, he made a terrible mistake
—he let his garage be used as a meth lab.” For that crime,
Francisco served four years in prison. Despite thirty-seven
years in the United States, Francisco was stripped of his
green card and deported to Mexico. With his children and his
life in the United States, he came back. He was caught,
convicted of illegal reentry, and sentenced to two years in a
federal prison in New Mexico before being deported again.
Now he sells avocados in Mexico. To Cecilia, “he is being
punished for the rest of his life, since he can never live in
the U.S. with his family again. And my sister and I are being
punished with him.”5
Facing criminal charges, people accused of committing
immigration crimes are housed in county jails, private
prisons, and federal penitentiaries before they are even
convicted. Eduardo José Garza, a father of three in the Rio
Grande Valley, recalls the experience of being moved from
jail to jail after his arrest for illegal entry. First, he was in a
privately owned and operated prison in Willacy County,
about an hour’s drive from his family. Then he was sent to
Houston, and then Laredo, before eventually being deported
to Mexico. Like Equihua, he soon recrossed the border to be
with his family. When police pulled him over during a routine
traffic stop, they arrested him for not having a driver’s
license. The local cops who booked him into jail contacted
ICE, and instead of just deporting him, ICE turned him over
to federal prosecutors, who went after Garza with criminal
charges for illegal reentry. He remembers the humiliation of
being brought to federal court. “They treat you really
badly,” he says. “They don’t talk to you how they should, as
a human being. They bring you chained up as if you were a
criminal.”6 But, no matter how he views himself, he is a
criminal because federal officials decided to bring the full
weight of the criminal justice system against him.
Today, immigration imprisonment is the norm, yet in the
United States, while confinement has long been a central
feature of criminal proceedings, it has been an anomaly
when it comes to immigration-law enforcement. For most of
the nation’s history, we did not lock up so many people for
the act of migration. More often than not government
agents turned a blind eye to migrants who flouted the law,
either letting them into the United States or sending them
back quickly and, in comparison to today, painlessly. If they
committed a crime, they were expected to serve their
sentence; afterward, they could return to their communities
in the United States. In effect, immigration law and criminal
law were separate, and citizenship played no role in whether
people ended up behind bars.
Government statistics bear this out. Throughout the late
nineteenth and twentieth centuries, few people were
forcibly removed from the United States because of a
conviction. During the nine decades stretching from 1892 to
1984, federal immigration officials formally barred from the
United States 633,918 people. Of those, a mere 14,287 were
treated that way because of criminal activity. Likewise,
officials deported 812,915 people from 1908 to 1980 but
only 56,669 because of a criminal offense. For the most
part, government officials were more concerned that the
poor would end up on welfare or that people had failed to
meet visa application requirements.7 Meanwhile, federal
prosecutors seldom tapped the power of criminal law to
target migrants. Though entering the United States without
the federal government’s permission was a crime for most
of the twentieth century, prosecutors rarely tried to convict
people for doing this. In 1970, prosecutors charged a mere
575 people with an immigration crime.8 Even in 1993, they
filed immigration crime charges in only 2,487 cases—just 5
percent of cases pursued that year.
Not surprisingly, few people were imprisoned because of
their immigration status. Reliable prison statistics going
back decades are hard to come by, but as recently as 1994
there were only 8,604 people locked up annually while they
faced federal immigration crime charges. However, that
number grew to 97,982 by 2013, a mammoth 1,039 percent
Imprisonment rates have similarly shifted for people
actually convicted of a federal immigration crime. In 1990,
there were 1,728 convicted immigration offenders locked up
on an average day, but in 2013 there were 19,100.11
1973, the Immigration and Naturalization Service (INS)
detained only 2,370 people every day, and in 1980 that
number had grown to 4,062.12 But by the last months of the
Obama administration, ICE held roughly 40,000 people
daily, a number that would soon rise under President Trump,
surpassing 42,000 daily in 2018.
During the last thirty years, both the federal and state
governments have increasingly tapped their powers to
incarcerate people for how they move across borders. As a
result, the United States has the world’s largest immigrant
detention system, in which upward of half a million people
annually now spend time locked up because the
government claims they violated immigration law. Even with
record numbers of migrants locked up, less than six months
into the Trump administration Congress increased funding
for ICE detention and federal prosecutors charged with
pursuing criminal convictions against migrants who came to
the United States without the federal government’s
Despite the historically unprecedented scale of
immigration imprisonment, its sheer scope is often
overlooked in conversations about immigration and criminal
justice, and when it is mentioned, advocates, journalists,
and academics tend to split confinement into two types:
civil immigration detention and punitive criminal
incarceration. Supposedly, civil detention doesn’t punish;
criminal incarceration does. While accurate as a matter of
formal law, this distinction is a farce on the ground. It fails to
reflect the reality of immigration policing and the lived
experience of migrants. Whatever the law says, the conduct
that leads to immigration imprisonment and the conditions
of confinement are largely identical across the civil/criminal
divide. And no matter its formal label, immigration
imprisonment often has a devastating effect on those
detained, their families, and their communities.
As with its better-known policing cousin—mass incarceration
as criminal punishment—the immigration imprisonment
story emerges amid the racially coded debates of the mid1980s, when legislators built the war on drugs on the threat
ostensibly posed by people of color. Long before Donald
Trump spilled off the pages of tabloids, politicians claimed
migrants were responsible for a substantial amount of drug
trafficking. From the White House to the pages of major
newspapers and magazines, rumors spread of migrants
dealing drug-induced death and decay across the urban
landscape. More recently, inflated fears of Muslim terrorists
boosted immigration imprisonment. In the immediate
aftermath of the September 11, 2001, attacks, Muslims who
were suspected of violating immigration law—and nothing
more—were thrown into high-security wings of maximumsecurity federal prisons. Adding his own emphasis to this
decades-long story, President Trump shifted the federal
government’s attention to gangs. Whoever has been in
office, for three decades the president, Cabinet officials, and
top advisors have claimed we must imprison our way to a
functional immigration-law system.
With all the hysteria about drugs, terrorism, and gangs,
it’s no wonder that the vast majority of people locked inside
immigration prisons are people of color. Not only does
policing disproportionately focus on black and brown
migrants, but immigration enforcement does too, despite
the presence of plenty of Canadian and European migrants
who are also violating immigration law. “Historically we have
evidence of more terrorists coming across our northern
Canadian border than our southern border,” Asa Hutchinson,
a top DHS official under President George W. Bush, said in
2007 as the agency was furiously recruiting Spanishspeaking Border Patrol officers. How should the gargantuan
department he helped lead respond to the northern threat?
“The best border security on the northern border is the
grandmother who has lived in her house on the border for
seventy years. She sits in her home and watches the border
and calls border patrol when she sees something
suspicious,” Hutchinson explained.13 To the north, we rely on
grandmothers in their living rooms. To the south we rely on
prisons, agents, and walls.
Spurred by, or taking advantage of, racialized fears of
lawlessness, those on the political right view migrants,
especially noncitizens with a criminal record, as national
security risks and threats to the rule of law. They are
“criminals,” former Republican Speaker of the House John
Boehner said in 2013. On his first visit to the southern
border as attorney general, Jeff Sessions instructed federal
prosecutors nationwide to prioritize immigration crime
cases. “Criminal aliens and the coyotes and document
forgers seek to overthrow our system of lawful
immigration,” he told a group of assembled Border Patrol
agents in Nogales, Arizona. “It is here, on this sliver of land,
where we first take our stand against this filth.” At the same
time, many advocates keep migrants with criminal records
at arm’s length out of concern that association with the
most unsympathetic members of immigrant communities
might tarnish broader immigration reform efforts.
Sometimes, silence can weigh as heavily as the crudest
Despite the common refrain that immigration law is
“broken,” immigration imprisonment is a sign that the
United States immigration policy is working exactly as
designed. The system hasn’t malfunctioned. It was intended
to punish, stigmatize, and marginalize—all for political and
financial gain. Politicians get elected, local governments
receive revenue, corporations profit, and white racists find
comfort against the prevailing winds of change that bring
different languages, different people, and new challenges to
old communities. That is exactly what is happening.
Prisons mark the people locked up as outcasts. The
coiled razor wire stretched in layers around the perimeter
suggests that they are dangerous, and if they are dangerous
then good riddance. Prison segregates migrants physically
and in the public’s imagination. They can be ignored,
forgotten, or remembered only as the unknown threat that
requires guards, cameras, and steel doors. At the same
time, their unseen existence is used as proof that the threat
is real. Erased of individuality, they become justification for
strong-armed policing tactics and are flagged as evidence
that elected officials care about the innocent public.
Immigration prisons are also surrounded in secrecy.
Whatever happens on the inside stays on the inside—or at
least that is what the authorities intend. Confined in
Arizona’s Eloy Detention Center for 444 days, poet
Alexandra La Golosa wrote, “In Eloy we have dates instead
of names. / Nobody asks while meeting of your name— /
They ask ‘how much’ and ‘when.’” Their treatment, she
added, was akin to “animals in chain.”14 Some migrants talk
about their time inside the “perrera”—the dog pound—
because they were locked inside large chain-link-fence
enclosures within Border Patrol stations. “When we arrived
at la perrera,” one woman said, “[my son] was taken away
from me again.”15 Pediatricians and psychologists say
children should never be imprisoned, but federal officials
say they have only two options: take kids from their parents
and lock them up with other kids, or imprison families
together. In today’s topsy-turvy world, family detention is
offered as the humanitarian response to family separation.
Meanwhile, the safety of imprisoned migrants is hardly
guaranteed. Sexual assaults are not uncommon. Consider
Levian Pacheco, a “youth care worker” in a Phoenix
immigration prison. He worked for Southwest Key, the
nonprofit that operates the largest number of facilities for
the Office of Refugee Resettlement, the agency responsible
for holding young people who are no longer with their
parents. After sexually abusing seven boys, Pacheco was
caught, convicted, and sentenced to nineteen years in
prison. Now he’s incarcerated, and the boys he abused are
forced to live with their trauma.
Life is by no means sacred inside immigration prisons.
Kamyar Samimi was a young man when he arrived in the
United States in 1976. Three years later, he became a
permanent resident. Almost thirty years after that, in 2005,
he was convicted of simple possession of cocaine. The judge
ordered him to do some community service, but Samimi
didn’t get any jail time. His troubles might have ended
there. He went back to his ordinary life in suburban Denver.
But twelve years after his conviction, ICE agents arrived at
his home. They arrested him and took him down to a nearby
privately owned and operated detention center in Aurora,
the city infamous for the 2012 shooting where James
Holmes opened fire inside a movie theater and took twelve
lives. Aurora would also be where Samimi’s life ended. He
died in ICE’s custody. He “fell ill” and died of cardiac arrest,
ICE said.16 Some, including a local congressman, remained
unconvinced; they wanted to know whether lousy medical
care was to blame.17 An internal review released a year later
revealed that, despite his complaints of feeling ill, nurses
checked his vital signs half as often as a doctor demanded
and gave him less than half the medicine ordered.18
Samimi’s death reminds us that “prisoners are persons
most of us would rather not think about,” as Supreme Court
Justice William Brennan wrote in a 1987 case. “Banished
from everyday sight, they exist in a shadow world that only
dimly enters our awareness.”19
Financial incentives push toward ever-growing incarceration.
In immigration enforcement, private prisons have an
outsized presence. Sixty-five percent of ICE detainees are
held in private facilities.20 Every year, private prison
corporations make hundreds of millions of dollars off
immigration imprisonment. “You sell [prisons] just like you
were selling cars, or real estate, or hamburgers,” private
prison pioneer Tom Beasley said.21 To entice customers with
cheap prices, inside some prisons migrants are put to work
for $1 per day. Whether it’s voluntary, as prison officials
claim, or forced labor, as many migrants say, it’s certainly
profitable to pay cooks and cleaners well below the
minimum wage.
Like farmers and consumers hungry for cheap food, this
is a story of symbiosis. But the relationship private prisons
have with the federal government isn’t one of an
opportunistic industry meeting the needs of a willing
customer. The private prison industry grew up alongside
immigration imprisonment. Their modern histories began to
expand jointly under the Reagan administration when
entrepreneurial prison executives and investors convinced
ICE’s predecessor, the INS, that it could quickly take custody
of an ever-changing number of migrants. Since then, that
has remained the private prison industry’s tune, and the
federal government has become dependent on its supply of
guards and steel doors.
Just like money matters, votes do too. In some places,
immigration prisons are an economic lifeline. Across the
United States, local governments have gotten into the
business of immigration imprisonment by building new jails
or enlarging existing facilities in the hope that the federal
government will pay the bills. Migrants are turned into
commodities—their bodies valued for the revenue stream
they promise. Facing the possibility of an immigration prison
shutdown, the mayor of a small South Texas town heavily
dependent on prison jobs didn’t mince words: “If we lose our
prisoners, the income comes down.… We need everybody to
be employed. We need those prisoners.” Roughly 6 percent
of counties nationwide contract with ICE to hold migrants.22
Others use space in their county jails to house the U.S.
Marshals Service’s immigration prisoners. Whichever
agency sends the prisoners, the counties take the federal
government’s money all the same. With that, they hire
guards and pay for construction—more jobs for local
workers, more votes for local politicians.
Instead of continuing along this path, the United States
must rethink its approach to migrants. Toddlers like Diego
can’t be blamed for coming here in violation of federal law.
No one asked for his opinion. But it’s equally true that
others do have a choice. After he was deported, Francisco
Equihua decided he would flout federal laws yet again so
that he could be with his daughters. “My job is to be here for
you guys,” he told his daughter Cecilia. It’s a noble goal, but
it doesn’t erase his crime. His transgression is clear, but to
his kids he’s still just dad.
Migrants are just people. They are fallible, imperfect
human beings. Their passports might differ from U.S.
citizens’, but the skeletons in their closets don’t.
Immigration law needs to accept that migrants are no better
and no worse than U.S. citizens. The wife of Edgar Baltazar
García, a long-time Texas resident and veteran thrown into
an immigration prison pulled the veil off her family’s twohanded treatment: “He’s brave enough to come and serve
this country, and for him to be detained, it’s not right. There
are a lot of other people out here who are U.S. citizens and
they don’t even have the bravery he does to serve our
country,” Jennifer García told reporters while sitting in my
family’s law firm.23 She might have added that imprisoning
people because they violate immigration law raises the dust
of the racially charged era in which the immigration prison
legal infrastructure was built.
This book takes a hard look at the U.S. immigration
prison system’s origins, how it currently operates, and why.
The use of confinement to target migrants was dreamed up
at very specific historical moments, and that history
matters. It tells the story of fears of decades past refracted
through the prism of the United States’ troubled race and
class relations. It helps explain why we now do what we do,
and it hints at how to unravel the vast immigration prison
regime. So how did we go from effectively abolishing
immigration imprisonment during the 1950s and 1960s to
today’s pattern of locking up half a million people annually?
To understand that dramatic shift, we have to step back to
the late 1800s, when the federal government became
heavily involved in immigration law for the first time.
Part I
For the first one hundred years of the nation’s history, the
federal government was not heavily involved in immigration
law. The only mention of migration in the U.S. Constitution
comes in the Migration Clause, a fifty-four-word provision
that guaranteed slavery would continue at least until 1808.
During that same period, the first Congress in the nation’s
history adopted the Naturalization Act of 1790, which
extended citizenship rights to “free White persons” who met
a two-year residency requirement and possessed “good
character.” Adopting a variety of strategies, states,
counties, and towns regulated movement across borders.
Sometimes they focused on the external borders of the
United States. Mostly they didn’t. In those days, borders
between states were at least as important as borders
between countries.
Some states targeted people convicted of certain crimes.
In 1787, for example, Georgia barred any felon from setting
foot in its territory. Rhode Island targeted criminals from
other states; Connecticut focused on those coming from
In 1837, Massachusetts began charging
shipmasters a tax on some migrants brought to its ports.
After the Supreme Court invalidated that fee in a decision
called the Passenger Cases, the state started demanding
that shipmasters post bond for all incoming migrants.2
Meanwhile, several states targeted movement by black
people. Some states that banned slavery made it difficult for
formerly enslaved people to move in, fearing that slave
owners would free old and economically unproductive
slaves. Slave states didn’t want free blacks either, fearing
the bad example their freedom would set for enslaved
blacks.3 Some states expelled unwanted newcomers, some
imprisoned them—others threatened death.
In the Civil War’s aftermath, when citizenship was
extended to former slaves under the Fourteenth
Amendment, focus turned westward. For decades, Chinese
migrants had worked menial jobs like laying railroad tracks
and operating laundries. Estimates vary on how many
Chinese migrants came to the United States during the mid1800s; some research suggests as many as 300,000
Chinese, mostly men, moved to the United States between
1850 and 1882, the vast majority to California. California’s
economy became so reliant on Chinese laborers that in
1852 the governor pitched the idea of giving Chinese
migrants land in the hope that more would be convinced to
come.4 The governor’s idea didn’t become reality, but
Chinese communities throughout California did. By the mid1850s, 12 percent of San Francisco’s population was
Chinese. Within a few years, San Francisco’s Chinatown
covered fifteen square blocks.5
Political tides turn quickly. The open-armed embrace of
Chinese migrants proved short-lived. In the decades that
followed the Civil War, the Chinese became the picture of
undesirability, exhibiting the enduring power of racism
brewed in a nativist political cauldron. Illustrating the sharp
turn of events, white Californians led the anti-Chinese
fervor. In 1879, for example, Californians voted on whether
to encourage additional Chinese migration. Almost 900
votes were cast in favor. Over 150,000 people voted
against. The next year, San Francisco’s Board of Health
declared Chinatown a public nuisance.6
Meanwhile, the state
legislature consistently adopted anti-Chinese measures
throughout the 1850s and 1860s.7
Despite successful efforts to make life difficult for
Chinese migrants within California, anti-Chinese advocates
were unsatisfied by the slow and inconsistent pace of statelevel tactics. They wanted to make life difficult for Chinese
migrants in one sweep. The only way to accomplish this was
through federal action. For this reason, they turned their
focus to Congress. By 1862 they began notching a series of
legislative wins. That year, Congress banned migration by
Chinese indentured servants—“coolies,” in the day’s
vocabulary. In 1875, Congress banned entry of prostitutes, a
thinly veiled attempt to keep out Chinese women. AntiChinese lobbying in Congress culminated in the Chinese
Exclusion Act of 1882—the only federal law ever to explicitly
ban a national group by name. As a result, Chinese laborers
could no longer come to the United States. Less than ten
years later, in 1891, Congress again changed immigration
laws. This time it excluded people who had committed a
“crime involving moral turpitude,” an intentionally vague
concept that is deployed to this day and “refers generally to
conduct that is inherently base, vile, or depraved, contrary
to the rules of morality and the duties owed between man
and man, either one’s fellow man or society in general.”
Spurred by increasing hostility toward almost all Asian
migrants, exclusion was extended to the “Asiatic Barred
Zone” in a series of laws enacted between 1917 and 1934.8
With federal immigration law growing year after year,
government officials were suddenly tasked with
distinguishing between desirable migrants and undesirable
migrants. Who, for example, is a prostitute? Who is an
excludable Chinese laborer and who is a Chinese merchant,
who is allowed to enter? Who has committed a crime
involving moral turpitude? A quick once-over isn’t enough to
identify who fits into one category or another. The stark
categorization of human beings, with all the messy,
multifaceted nature of life, always fails. In one case, a
divinity student was allowed to enter as a student but was
removed once he started preaching—he had become a
laborer, immigration officials said, and a court agreed. In
another, a merchant became a laborer when he turned to
selling fruits in a Los Angeles market after his grocery store
Government officials needed some way to figure out who
was to be kept out of the United States and who could come
in. Imprisonment provided the on-the-ground solution. Once
migrants stepped foot on dry land, they had entered the
United States. To the government, this was a problem. At
the time, the Constitution protected people inside the
country more than people who hadn’t entered. Intent on
vetting people arriving on steamships, government officials
forced transoceanic companies to keep passengers on board
until they’d decided whether a person was fit to enter the
country. Anything else would be to allow migrants to enter
before government officials had decided if they should be
kept out. Second thoughts would require an attempt to
locate and deport a migrant—a tough law enforcement task
in the 1800s that was compounded by the fact that
Congress didn’t even enact the federal government’s first
full-fledged deportation law until 1891. That year, Congress
granted immigration officials the power to deport anyone
who had entered in the previous twelve months but should
have been excluded.10
With the federal government’s demand that ships keep
passengers on board, immigration imprisonment had begun,
and it started in the hands of private corporations. Not
surprisingly, the shipping companies were not pleased
about this requirement. They were in the business of
moving people across oceans, not housing them harborside.
Every day that a migrant sat on a ship was an
inconvenience and expense. Passengers needed food, and
the ship was stuck in port. Soon the companies and the
government agreed on an alternative: the companies would
provide onshore housing nearby. Steamship companies were
obviously happy. They could now quickly offload passengers
and cargo and send the ship back to sea. But doesn’t this
mean that migrants were being allowed to enter the United
States before government officials had a chance to decide
whether they should be turned around?
The practical answer is clear—the land around a harbor is
definitely part of the United States—but the law quickly
muddled the practical reality. In 1891, Congress adopted a
legal concept that people could enter the country physically
without entering the country legally. This twist of logic,
known as the “entry fiction,” meant that steamship
passengers could be allowed off the boat without benefiting
from the higher hurdle that government officials have to
climb to deport someone rather than exclude them. For the
government, this arrangement had a second advantage.
They didn’t have to spend time or money locating people
who had arrived from overseas. Officials could simply go
down to the company-owned confinement facility.
Thanks to the entry fiction, the immigration detention
center became an in-between space in law. It was neither
outside nor inside the United States. Whether in California
or New York, there was never doubt that on-shore detention
sites were physically within the territorial boundaries of the
United States. The entry fiction is no doubt a quirky legal
doctrine: a person can be inside the United States as a
matter of geography and outside it as a matter of law. But it
also served to wedge open a broader space within the law
that allowed early immigration detention centers to operate
with minimal oversight and to blur traditional legal
Soon conditions inside early immigration prisons were
atrocious. “The air is impure, the place is crowded,” wrote
one visitor to a San Francisco “Chinese jail,” as the dockside
facilities were often described. “I have visited quite a few
jails and State prisons in this country, but have never seen
any place half so bad,” he added.11 Another account goes
into more detail: “The Shed—rightly so-called—is a cheap,
two-story wooden building, at the end of a wharf, built out
over the water where the odors of sewage and bilge are
most offensive; unclean, at times overrun with vermin, and
often inadequate to the numbers to be detained. The food
provided was poor and the conditions even more unsanitary
than the police cells of the city.”12 With up to two hundred
people jammed into a one-hundred-foot building, an
inspector for the Department of Commerce and Labor called
the two-story warehouse leased by the Pacific Mail
Steamship Company a “death trap.”13 Even the federal
government’s commissioner of immigration was said to
have found the facilities too dirty for comfort.14
While on a minuscule scale compared to today’s
immigration prison practices, there are uncanny parallels.
The migrants locked in these unsanitary, haphazard sheds
technically had not been charged with a crime. They were
just waiting to find out whether they could enter the United
States legally as well as physically. But it sure looked and
felt like prison. Sociologist Mary Roberts Coolidge, who
wrote about the Pacific Mail shed in San Francisco while it
was still in use, claimed that detainees were “all under the
guard of ordinary police.”15 A former detainee said, “One
may look to the right and to the left and see only bunks and
benches. ‘You stay here, you stay here,’ is all they say. Here
you are cramped and doomed never to stretch.”16
It is easy
to see how migrants might have missed the distinction
between prison and temporary detention tied to
immigration vetting, because the sheds were often modeled
on prisons. The vice president of one transportation
company “successfully argued that the new detention
quarters ‘would have to be heavily stockaded and guarded
… built and erected as a prison.”17
Completing the erosion of
an already weak distinction between prison and temporary
detention, sometimes migrants were confined in traditional
county jails.18
With time, reformers sympathetic to Chinese migrants
got wind of the atrocious and punitive state of detention.
Their proposal was to take steamship companies out of the
detention business. Instead, the government would run
immigration detention—an “immigration depot” in New York
harbor, as one congressional committee recommended in
1889.19 Removing profit-driven transportation companies,
they hoped, would eliminate penny-pinching and improve
the treatment migrants received. Two years later, Congress
responded. For the first time, federal law explicitly
authorized immigration imprisonment, and responding to
these congressional directives, federal immigration
authorities quickly launched a prison network and boosted
their capacity to hold people. On the East Coast, for
instance, Ellis Island opened on January 1, 1892, serving
dual roles as a point of disembarkation and one of
detention. Working under the direction of the newly created
position of superintendent of immigration, federal officers
were required to inspect migrants arriving by sea. If they
could not conduct the inspection on board the ship, officers
could “order a temporary removal of such aliens for
examination at a designated time and place, and then and
there detain them until a thorough inspection is made.”20
Immigration imprisonment had now been added to the
nation’s immigration-law infrastructure. Two years later,
Congress revisited its newfound interest. This time it
stripped inspection officers of discretion to detain. They
were now required to detain anyone not “clearly and beyond
doubt entitled to admission.”21
Like its East Coast counterpart at Ellis Island, immigration
imprisonment in California centered on an island just
offshore a thriving urban area: Angel Island in San Francisco
Bay. The passengers arriving on steamships in San Francisco
tended to come from Asia. In the words of Hubert Howe
Bancroft, the prominent nineteenth-century Californian
whose name still adorns the University of California’s library,
these people were “in every sense, aliens. The color of their
skins, the repulsiveness of their features, their under-size of
figure, their incomprehensible language, strange customs,
and heathen religion” combined to make them a “detested
race.”22 Given this attitude by the era’s civic leaders, it is no
surprise that they received a hostile reception.
Imprisonment was a central feature. From 1910 to 1940,
federal officials used Angel Island as an immigration holding
facility. No comprehensive figures exist about how many
people were forced to stay there. The best study indicates
roughly thirty thousand people were confined on the island
from 1913 to 1919. About two-thirds of those were the
Chinese who were famously targeted by state and federal
laws going back to the 1870s, but Japanese and non-Asian
immigrants were also kept there.23
In 1913, three years after the Angel Island detention
facility opened, 38 percent of all people arriving in San
Francisco were held. Excluding U.S. citizens arriving in San
Francisco, 60 percent of arriving migrants were sent to
Angel Island.24 Not all Chinese migrants were confined at
Angel Island, and not everyone confined there was Chinese.
In 1913, for example, 76 percent of Angel Island detainees
were Chinese. Most of the rest were Japanese. A mere 7
percent were not Asian.25 Race was clearly an important
factor in identifying detention targets. But so too were
gender and class. Chinese women were more likely than
men to end up at Angel Island, presumably because they
were more likely to be pegged as prostitutes. Among
passengers of all races, people traveling in steerage were
more likely to be detained than were first-class or secondclass passengers.26
Among the people detained on Angel Island, Quok Shee
stands out. When she arrived in San Francisco from Hong
Kong at the age of twenty, immigration officials suspected
that the man accompanying her, fifty-six-year-old Chew Hoy
Quong, was bringing her for immoral purposes. Inspector
J.B. Warner grilled each separately, fishing for discrepancies
that might support his suspicion. “How was the bedroom
lighted” in the building in which the couple had allegedly
married, the inspector asked. “How was the parlor
furnished? What kind of clock did you have in your parlor?”
She recalled its being made of wood. He said it was metal.
There were enough discrepancies for immigration officials to
deny her admission into the United States. With the help of
various San Francisco lawyers, the couple fought back in the
courts. But while they did, Quok Shee spent her days at
Angel Island. Fifteen months later, her lawyer warned
immigration officials that she might kill herself. Still she was
denied release. Fortunately, the worst didn’t happen.
Instead, for almost two years, Quok Shee was held at Angel
Island, “imprisoned and detained,” as the court order
granting her release in August 1918 described it.27
Angel Island would serve as an immigration prison for
more than two decades after Quok Shee left. After a fire
destroyed the facility in August 1940, immigration officials
moved the prisoners to the mainland, and Angel Island
never again saw use as an immigration prison.28
While detention emerged on both coasts, Ellis Island and
Angel Island marked different patterns. At the turn of the
century, migrants from Europe were arriving in enormous
numbers. On Ellis Island, where the bulk of arriving migrants
came from Europe, 10 percent of disembarking migrants
were detained in 1907, the busiest year in that outpost’s
In those days, to be European wasn’t necessarily
to be white, and plenty arrived from disfavored classes—
Jews as well as newcomers from southern and eastern
Europe, for instance—and the Supreme Court’s earlier
willingness to free civil imprisonment from the restraints of
judicial trials meant that immigration detention could
quickly be deployed against dissident migrants.
Within sight of Manhattan, Ellis Island is remembered as
a gateway for generations of migrants. It has been
romanticized as the site where the United States embraced
its twentieth-century migrants. “Give me your tired, your
poor / Your huddled masses yearning to breathe free,”
pleads the Emma Lazarus poem etched onto the nearby
Statue of Liberty. But as is so often the case, the reality of
Ellis Island is much more complicated. The immigration
station there certainly welcomed millions of people to their
new home. It also confined many others, especially as more
immigrants entered the country from the less-favored
southern and eastern Europe—“morally delinquent” people
of “deteriorating character,” one doctor on Ellis Island
complained.30 Through two substantial immigration-law
amendments enacted in the 1920s, Congress tied future
migration to past migration. The Immigration Act of 1921
limited migration from any one country to 3 percent of the
number of migrants from that country living in the United
States in 1910. The 1924 law capped per-country migration
to 2 percent of the 1890 figures, giving Great Britain 43
percent of the total, slashing the allotment for southern and
eastern Europeans, and just about excluding Asians.31
Governed by a strict quota linked to a period when
migration from northern and western Europe was more
common, unauthorized migration grew.
32 But because
legislators’ eyes were on disfavored Europeans, neither law
limited migration from Mexico or any other Western
Hemisphere country.
By the early twentieth century, foreign-born radical
leftists also joined the Chinese as favorite targets. In the
midst of World War I, following the success of the Russian
Bolshevik Revolution in 1917, Congress enacted statutes
excluding or deporting anarchists, communists, and
socialists. Almost immediately, leftists were rounded up,
imprisoned, and frequently deported. Planned to coincide
with the Bolshevik Revolution’s second anniversary, a series
of raids nationwide orchestrated by Attorney General A.
Mitchell Palmer led to thousands of arrests. It remains
unclear exactly how many people were apprehended, “but
best estimates are that some 6,000 warrants of arrest were
issued for alien ‘reds,’ and 4,000 arrests were made.” The
assistant secretary of labor at the time, Louis Post, reported
that in Boston prisoners were shackled and marched
through city streets. Among those caught up in this ordeal
was perhaps the most famous leftist of the era, the
anarchist Emma Goldman. Automatically stripped of her U.S.
citizenship when her husband lost his, she described the
migrants forced onto the U.S.S. Buford, nicknamed the “Red
Ark,” as “prisoners.”33 Recalling with horror the realization
that she was being shipped out, Goldman described seeing
New York from the window of a cramped transport ship:
“Through the port-hole I could see the great city receding
into the distance, its sky-line of buildings traceable by their
rearing heads. It was my beloved city, the metropolis of the
New World. It was America, indeed, America repeating the
terrible scenes of tsarist Russia! I glanced up—the Statue of
After the federal government started detaining migrants, it
wasn’t long before courts were asked to weigh in on
immigration imprisonment’s legality. For a time, the Chinese
community of California proved especially adept at tapping
the power of the federal courts to limit detention. So many
Chinese petitioned the federal trial court in San Francisco for
entry into the United States that local newspapers in the
1880s referred to it as a “habeas corpus mill,” named after
the legal procedure inherited from the British used to
challenge the legality of detention.35 Most, it seems, were
successful. Of the approximately four thousand petitions
filed between the moment when the Chinese Exclusion Act
of 1882 was implemented and January 1888, one
newspaper reported, 87 percent were granted permission to
enter the United States.36 For a time, the courts clearly
represented a check on the government’s newfound
detention interest.
Success was short-lived. As was inevitable, the legal fight
moved from the trial courts to the Supreme Court. In 1896,
the justices emphatically declared that immigration
imprisonment was constitutionally permissible. “We think it
clear that detention or temporary confinement, as part of
the means necessary to give effect to the provisions for the
exclusion or expulsion of aliens, would be valid,” a
unanimous Court announced in Wong Wing v. United
In that short phrase, the Court established civil
immigration imprisonment: people can be deprived of their
liberty while the government decides if they are to be
allowed to remain in the United States. Only a few
sentences later, the Court acknowledged criminal
immigration imprisonment. “So, too,” the Court explained,
“we think it would be plainly competent for congress to
declare the act of an alien in remaining unlawfully within the
United States to be an offense punishable by fine or
imprisonment, if such offense were to be established by a
judicial trial.” For immigration to be punished criminally
through confinement, the government must rely on a
standard criminal prosecution, including all the protections
afforded defendants.
But being subjected to civil authority has never meant
escaping prison’s cluthes. Among the most famous of those
detained at Ellis Island was Ellen Knauff. Born in Germany,
she spent part of Hitler’s reign in Czechoslovakia. When war
caught up with her, she headed to England as a refugee,
where she worked for the Royal Air Force, then the United
States Army. While helping the Allied forces, she met U.S.
citizen and Army veteran Kurt Knauff. After the war, the two
married with the approval of the Army’s commanding officer
in Frankfurt.38 Taking advantage of the War Brides Act, a
special immigration procedure created by Congress
precisely to let war veterans return to the United States with
their new wives, Ellen arrived in New York on August 14,
That’s when the honeymoon turned to a nightmare.
Citing evidence that they refused to disclose even to the
Knauffs, immigration officials at Ellis Island were anything
but welcoming. Ellen was excluded from the United States
and sent to the restrictive quarters of the island’s
immigration station to fight for her freedom. “As we
approached Ellis Island,” she later wrote, “I could see that
parts of it were enclosed by double wire fences topped by
barbed wire and marked by what appeared to be
watchtowers. These fenced-off areas were subdivided by
more fences which gave the whole place the look of a group
of kennels.”39 An official history published by the nowdefunct INS described it as “a grueling detention-like
Ellen wasn’t even given a hearing at which she might
claim her right to enter the United States or plead for
41 Time and again immigration officials denied Ellen’s
attempts to live freely in the United States with her
husband. Time and again, they cited secret evidence that
“her admission would be prejudicial to the interests of the
United States.” Insistent, she fought all the way to the
Supreme Court, where she found little comfort.
The Constitution’s promise of a fair hearing proved
meaningless. Despite Justice Robert Jackson letting her off
Ellis Island in May 1949, his colleagues weren’t so
sympathetic. For people like Ellen hoping to enter the United
States, the Court ruled, Congress can create any procedure
it likes. “Whatever the procedure authorized by Congress is,
it is due process as far as an alien denied entry is
concerned,” the Court wrote in January 1950.42 The next
month Ellen was back on the island. Eight decades later,
courts continue relying on this line to deny all but the most
limited procedural protections to migrants who have not
been inspected and legally authorized to enter the United
Undeterred, the Knauffs mounted a public-relations
campaign, harnessing the power of public sympathy toward
veterans and their “war brides.” Full-page advertisements
supporting Ellen appeared in major newspapers. Editorial
writers called for the courts to revisit their position.
Members of Congress introduced legislation to help her.
After Kurt personally appealed to the attorney general, Ellen
was once more let off Ellis Island in January 1951 and,
despite not being required to, the attorney general granted
her a hearing. Again, she was denied admission as a
national security threat and returned to the island prison
four months after her release. Government witnesses
claimed she was a Communist spy who had given classified
information to Czechoslovakian officials. On appeal, she
finally obtained the relief she wanted. The government’s
immigration appeals unit, the Board of Immigration Appeals,
concluded that the spying accusations that had resulted in
her long imprisonment on Ellis Island were flimsy. They were
nothing more than “hearsay, uncorroborated by direct
evidence,” the appeals board wrote in its official decision.45
More than three years after Ellen was first held at Ellis
Island, the Knauffs were finally able to enter the United
States together.
Just three years later, the Supreme Court rejected a
lawsuit brought by another Ellis Island prisoner, Ignatz
Mezei. Born on the British territory of Gibraltar to parents of
“Hungarian or Rumanian” origin, Mezei had lived in the
United States for a quarter century when he left in an
attempt to see his dying mother in Romania.46 He never
made it. Romania didn’t let him in. Instead, he spent roughly
nineteen months in Hungary waiting for a visa allowing him
to leave. When he finally returned to the United States, he
was unceremoniously sent to Ellis Island. As with Ellen
Knauff, the world superpower thought him too dangerous to
admit. Indeed, too dangerous to know why he was barred
and too dangerous to receive a hearing. His time inside the
Soviet bloc was enough to minimize his twenty-five years of
unremarkable residence in the United States. Fighting all the
way to the Supreme Court, he too fared poorly. To the
majority of the justices, Ellis Island wasn’t a prison. It was
“harborage … temporary refuge,” wrote Justice Tom Clark.47
Four of the justice’s colleagues disagreed. Justices Hugo
Black and William Douglas complained that the government
refused to let Mezei visit his wife in Buffalo even
temporarily. But it was Justice Robert Jackson, who just
years before had led the victorious Allies in prosecuting the
most senior Nazi officials at the post-war Nuremberg
tribunal, who was most forceful.
His commitment to procedural fairness remained a guide
post. Evoking the ancient legal principle that no one should
be imprisoned without knowing why, he took issue with the
majority of his colleagues, who viewed Ellis Island as a
humanitarian refuge. “It overworks legal fiction to say that
one is free in law when by the commonest of common sense
he is bound,” Jackson wrote.48 Mezei was imprisoned on Ellis
Island due to the power of federal immigration officials. To
treat the speck of land as a place of safety made no sense
to Jackson. “That might mean freedom, if only he were an
amphibian!” he wrote in one of the most memorable lines of
any Supreme Court decision.49 Recognizing that he was on
the losing end of this argument, he complained that the
majority opinion would seem to allow government officials
to exclude Mezei by “eject[ing] him bodily into the sea.”50
far as we know, the government has yet to test Jackson’s
fear of brutish violence.
Despite embracing immigration imprisonment, the
Supreme Court never got around to elaborating its position.
Given that all immigration imprisonment targets violations
of immigration law, why is the civil type of imprisonment
permissible without a judicial trial but its criminal variety is
not? Neither the Supreme Court nor the lower courts have
ever shed light on this distinction. More than fifty years after
Wong Wing, the Supreme Court could do no more than
repeat itself: “Detention is necessarily a part of this
deportation procedure.”51 Viewed with the benefit of
hindsight, the Supreme Court’s simple conclusion about the
procedures required—or not—of immigration
imprisonment’s two iterations isn’t intuitive. The two types
of imprisonment are almost identical. From the
psychological toll of confinement and invasive security
checks to the literal architecture of the facilities used, it is
difficult for anyone to see meaningful differences. That was
true in the late nineteenth century when dockside sheds
were cast as worse than jails. And it is true today.
Just as World War II battles reshaped European landscapes,
wartime politics turned foes into friends. Long the focus of
harsh discrimination in the United States, Chinese citizens
played an instrumental role combatting the Allies’ powerful
foe in Asia, Japan. Some 14 million Chinese citizens lost
their lives during the war.
52 Meanwhile, the United States’
broad legal regime of racial discrimination came under
attack by African Americans and Latinos, who could die
alongside white soldiers on European battlefields but could
not dine or study with them in stateside restaurants and
universities. In the war’s aftermath, these critics did not let
up. On the contrary, the pressure intensified when the
Soviet Union began using racial discrimination as a rallying
point in its search for allies for the emerging Cold War.
Numerous countries in Africa, Asia, and Latin America were
all too willing to capitalize on the global power struggle to
improve their citizens’ access to the United States.53
Eventually, the United States could no longer ignore its
blatantly discriminatory immigration laws. During the mid1900s, several presidents tried and failed to remove
patently racist provisions from immigration law. In 1952,
President Harry S. Truman vetoed a proposal that favored
migration from northern and western Europe and limited
migration from all of Asia to a measly two thousand people
per year. Congress overrode his veto.
54 The following year,
Truman’s Commission on Immigration and Naturalization
recommended abolishing racial and national-origin
discrimination in immigration law. His successor, Dwight
Eisenhower, agreed. As a candidate for president,
Eisenhower declared, “We must strike from our statute
books any legislation concerning immigration that implies
the blasphemy against democracy that only certain
Europeans are welcome on American shores.” A few months
later during his first State of the Union address, he told
Congress, “Existing legislation contains injustices. It does, in
fact discriminate.…”55 Despite his complaints and stature as
a wartime hero, even President Eisenhower was unable to
successfully prod Congress to eliminate immigration law’s
racist sorting mechanism. Where presidents failed, “the
critical impetus for dismantling the national-origins quota
system in 1965” was the threat of Soviet influence.56 That
year, Congress finally brought national-origins
discrimination to an end.
Understanding immigration prisons today requires
understanding migration. Who comes to the United States,
why, and how? People don’t flip a coin to decide whether
they will leave their home, uproot their family, and start life
from scratch. Nor do they pick their destination in a highstakes game of darts. Migratory paths turn on historical ties.
They are triggered by peculiar relationships between
individuals and nations. My mother left rural central Mexico
for urban northern Mexico because a government program
to industrialize border cities had already lured her uncle
there. Years later, my mom moved to Texas because my
father was already there. And he was there because that’s
where the jobs were for his father.
Sometimes U.S. foreign policy pushes people to despair,
like when the United States supported rightwing
governments and paramilitary forces in Central America
that destabilized teetering democracies. Sometimes officials
just shut their eyes to death and destruction, like with the
bodies that dot the Arizona desert. When it comes to the
United States and its relationships with Mexico and Central
America, where most of today’s immigration prisoners were
born, the connections run deep. These are different
countries, but they share a common history that revolves
around migration. With migration comes the possibility of
exploitation. Poor people of color are dispossessed of wealth
and pushed to the margins of society. Once marginalized,
they can be exploited more easily.
For two centuries, law and policing have helped to
impoverish Mexicans and exploit their bodies as sources of
cheap labor. In the nineteenth and early twentieth centuries,
Mexicans living in what is now the western and
southwestern United States were routinely murdered by
white people. At other times, they were stripped of their
land through drawn-out, expensive legal cases or outright
terror. Texas’s state police force, the Texas Rangers, killed so
many Mexicans that one newspaper reported that the
“finding of dead bodies of Mexicans … creates little or no
interest.” Witnesses sometimes claimed that Rangers
burned their victims alive. “They came in every morning,”
reported a white South Texas resident, with “the ones that
were part dead, they just built up a big fire and burned them
up in a brush pile behind this lumber company.”1 Meanwhile,
white vigilantes and sheriffs lynched at least six hundred
Mexicans, a rate that roughly approximates the number of
African Americans lynched during the same period when we
account for the different population sizes.2
White violence left Mexicans in the West and Southwest
vulnerable to economic exploitation. Obviously, the dead
could no longer compete for precious natural resources—
land, water, and livestock—essential to the region’s
economic development. Survivors were also affected. But,
traumatized by news of murdered friends and relatives, the
Mexicans who survived felt the shudder of death any time
they might be accused of riling white sensibilities.3 Pushed
off their land and threatened with the most brutal of
violence, Mexicans were relegated to a status of an “inferior
racial other”—a source of cheap labor heaped at the bottom
of the region’s racial hierarchy.
Beyond violence, government officials and private
employers from the United States encouraged generations
of Mexicans and Central Americans to move north. No
example is more important than the two-decades-long
guest-worker initiative between Mexico and the United
States called the Bracero Program. Started in the midst of
labor shortages caused by World War II, the Bracero
Program led to hundreds of thousands of Mexicans coming
to the United States every year with the federal
government’s blessing. Literally referring to people who
work with their arms, the initiative was supported by the
political and economic elite of both countries. To the United
States, it meant a metaphorical army of low-wage laborers
could do the work left behind by the actual army of young
men who had been shipped to the battlefields of Europe and
Asia. To Mexico, it provided an escape valve. Its young men
could work in the United States instead of remaining at
home in poverty, where they might be tempted to repeat
the revolutionary insurrections of only two decades earlier.
Recruiters fanned throughout Mexico to convince young
men to head north. Intrepid youth willing to do so would be
given transportation, a job, and permission to cross the
Without question, the Bracero Program was formally
designed to give employers the upper hand. Everyone knew
it. Workers were granted permission to come to the United
States to work for a specific employer during a particular
period, usually a certain harvest season. As a result, they
were always subject to the employer’s control. Losing a job
meant losing legal permission to be in the United States.
The threat of being picked up by immigration agents and
put on the next bus to Mexico loomed constantly. Braceros,
as these temporary laborers were known, were supposed to
be paid the usual wage in the region—officially called the
prevailing wage—and receive social security contributions.
Both requirements were intended to keep bracero labor at
roughly the same cost as local labor. The law reflected a
desire to let employers get the workers they needed, but
not by undercutting homegrown labor.
Both requirements were empty promises. Instead of
respecting the legal requirement to treat migrant and
native-born workers fairly, the immigration historian Mae
Ngai explains, “the Department of Labor determined the
‘prevailing wage’ by calling local meetings of growers,
grower associations, and farm organizations. It made no
independent investigation of the labor market and took no
input from domestic workers, labor unions, or independent
organizations. The prevailing wage was thus whatever
growers decided it to be.”5 Getting ripped off by employers
violating the spirit and maybe the letter of the law wasn’t
all. United States government officials and employers also
treated braceros horribly. At times, workers were literally
fumigated at arm’s length. Shirtless, they were herded like
cattle into rickety screening sites, where their bodies were
sprayed from top to bottom, sometimes with DDT. In Texas,
conditions were frequently so bad that, for a time, the
Mexican government refused to let employers statewide
hire braceros.6
I remember asking my grandfather about his bracero
experiences when I was a teenager. For a child accustomed
to seeing the tall man expertly wield a machete and
navigate cornfields with aplomb, his answer remains jarring
even two decades later. With a cold gleam in his eyes, he
described to me the incessant verbal abuse. He talked
about the long hours in the hot sun of my native South
Texas, where requests for water were denied with derision.
“We had to pee in the fields,” he said in Spanish, conveying
in his expression the humiliation public urination carried for
him, a private, reserved man. I imagined this embodiment
of dignity lowering his eyes for want of a simple latrine.
Of all of his descriptions, clearest of all were the words
that captured what his experience as a bracero left him
feeling about the United States. “Jamas volveré,” he said,
putting words to the frustrating reality my mother
encountered every time she asked him to visit our family in
Texas. He vowed never to return to the United States. I
recall him going back on those words—a promise he seemed
to have made to himself to bear the pain of remembering—
twice only: for my oldest sister’s quinceñera, the traditional
coming-of-age party for Mexican girls, and her wedding. As
soon as the festivities were over, while most of us were
exhausted and still recovering, my grandfather was on a bus
back to Mexico.
Government officials didn’t just enact the Bracero
Program. They turned the wheels that crushed the dignity of
men like my grandfather. The Border Patrol, then and now
the nation’s main border police force, was intimately
involved in helping employers exploit workers. Owners of
large farms in Texas, California, and throughout the
Southwest often worked directly with Border Patrol agents to
ensure that they had the right number—and right kind—of
workers at just the right moment. When employers
complained of mouthy Mexicans who dared to demand
better treatment or higher wages, Border Patrol agents
made an appearance. They detained and deported their way
to a scared workforce. When employers needed help
refreshing the legality of their labor pool, Border Patrol
agents escorted migrants to the border. Migrants would be
told to cross the border into Mexico, then come right back to
the waiting government trucks: a few steps south of the
boundary line was enough to start their legal presence in
the United States all over. In this way, law enforcement
officers took “wetback” laborers to be “dried out.”
The Bracero Program was a boon for industries like
farming that were dependent on cheap labor, but for
Mexican migrant workers it was the bare-faced
commodification of their lives. A high-level commission
appointed by President Harry S. Truman described the
Mexican braceros as “ready to go to work when needed; to
be gone when not needed.”7 No concern was given to the
poor young men who made up the bulk of the bracero
workers as people. It was as if braceros weren’t humans
who build relationships with other people and who create
attachments to places. But friendships do develop,
romances bud, families are created, and communities are
established. Patterns emerge. Instead of focusing on
developing economic activity in their Mexican cities and
towns, braceros turned their economic hopes to wage labor
in the United States. Their physical energy and ingenuity
naturally centered on the possibilities available in places like
Texas and California, not San Luis Potosí and Durango.
For many, living in the United States was meant to be
temporary. Like my grandfather, some kept to that. Many
others found permanent jobs, bought houses, married, and
had children. They stopped migrating and became residents
of the United States. The younger siblings, distant relatives,
and fellow townsfolk of those who came before soon tapped
their knowledge to come here themselves, ensuring that the
migrant experience remained fresh. My mother’s experience
illustrates this phenomenon. After meeting my father south
of the border, eventually they relocated their young family
across the river to what was then the sleepy border town of
McAllen, where a few years later I was born.
Unlike my mother, not all migrants who became
residents of the United States did so because that was their
preference. Traditionally, people came and went as the
demands of work and life twisted and tugged—what social
scientists call circular migration. It’s estimated that as many
as six out of ten Italians who came to the United States at
the start of the twentieth century returned to Italy.
8 By no
means was this unusual. When I was visiting the
underground cellars of a small city in Poland, my guide told
me his grandfather had lived in the United States before
returning to this out-of-the-way town, where a single row of
restaurants and bars rings the picture-perfect central plaza.
For Mexicans, circular migration was a way of life. Jobs were
north of the border, but home was south. But, touted as a
temporary vehicle for filling wartime labor shortages, the
Bracero Program came to an end in 1964.
In the same way that immigration-law enforcement took a
radically different form in the late twentieth century,
transformational changes were happening to immigration
law too. Instead of outright bans against the Chinese or
quotas that favored western and northern Europe, the
Immigration Act of 1965 seemed to usher in a new era. The
Hart-Celler Act, as the 1965 legislation is commonly called,
brought a semblance of equality to federal immigration law.
People from every country in Africa, Asia, and Europe were
treated the same: each nation could send up to 20,000
people to the United States every year until a cumulative
total of 170,000 people had arrived from anywhere in the
hemisphere. After that, immigration from the world’s
Eastern Hemisphere was cut off. Within a few years, longdisfavored Asian countries dominated the United States
immigration rolls. Excluding Western Hemisphere countries,
four of the top six migrant-originating countries in 1971
were in Asia.9 This literally changed the look of immigration.
Instead of the white faces that had dominated migration
from the late nineteenth century onward, late twentiethcentury migration was decidedly not white.
Ironically, relaxing limits on migration generally made it
harder for Mexicans and Central Americans to come to the
United States lawfully. Instead of the relatively unimpeded
and welcomed access to the United States that Mexicans
and Central Americans had become used to, the Hart-Celler
Act applied equal, but less favorable, treatment to the
Americas. Every country in the Western Hemisphere could
send an unlimited number of people so long as the
hemispheric total did not surpass 120,000. On its face, this
seemed fair, but on the ground, it was anything but equal.
In the early 1960s, there were 200,000 Mexican braceros
heading to the United States every year with the federal
government’s blessing—legal status in one hand, work
permit in another. When immigration law changed in 1965,
fewer people could come from the entire Western
Hemisphere than had been coming from Mexico alone.
The labor market didn’t radically transform. Jobs didn’t
evaporate in the United States and magically pop up in
Mexico. Families and friends here didn’t suddenly disappear.
Mexicans kept coming to the United States, they continued
doing the same kind of low-paid work as before, and they
kept their ties in the United States and back in Mexico. The
only thing that changed was the law. Before, they could do
all this legally; suddenly, they couldn’t. Immigration law
created unauthorized migration from Mexico. In 1976,
Congress increased unauthorized migration when it capped
Mexican migration at 20,000 people per year. To poor
Mexicans who had long been wooed by U.S. businesses and
consumers, the Hart-Celler Act’s migration ceilings felt like a
cruel joke.
The civil rights era’s emphasis on formal equality
replaced blatantly discriminatory laws and pushed the
nation closer to its democratic aspirations. But perversely,
the Hart-Celler Act’s formal equality turned immigration law
against Mexican migrants. Instead of opening paths into the
United States, the 1965 law’s emphasis on treating
everyone equally meant that there was no appreciation for
the unique events leading many Mexicans to the United
States. These liberalizing amendments simply turned
Mexicans into the picture of immigration lawlessness.
Mexican migrants, writes the immigration historian Mae
Ngai, were “recast … as ‘illegal.’”10
In this way, most
Mexican and Central American migrants today stand on
different ground than those from generations past. Instead
of choosing to flout established pathways into the United
States, most Mexican and Central American migrants use
the only pathways realistically available, legal or not.
Meanwhile, under Eisenhower’s watch, the INS had all but
abandoned its detention policy in 1954. This was not a fluke
but rather the result of deliberate policy choices.
Announcing the policy shift, the attorney general said this
was a step toward a “humane administration of the
immigration laws.”11 Writing for a majority of the Supreme
Court, Justice Tom Clark, a man who had coordinated the
forced internment of Japanese Americans during World War
II, commented that the government’s no-detention policy
“reflects the humane qualities of an enlightened
civilization.” And for the next quarter century, few migrants
were confined at any point. When confinement did occur, it
was short-lived; most people were released while
immigration courts heard their cases.12
In fact if not in law,
the United States came remarkably close to abolishing
immigration imprisonment.
When I talk about the Eisenhower government’s ending
detention, modern audiences eye me suspiciously. And yet it
happened. When the time came for the Ellis Island detention
facility to shut down, Attorney General Herbert Brownell said
matter-of-factly that “the little island between the Statue of
Liberty and the skyline and piers of New York seems to have
served its purpose.” That day, the New York Times reported,
“the last detained alien—a Norwegian seaman who had
overstayed his shore leave—was a passenger on the
Battery-bound ferry.…”13 Even though this Norwegian
seaman had evidently violated immigration law, he entered
Manhattan with the federal government’s permission,
promising to leave the United States soon. In all likelihood,
we will never know whether he did. Enforcement efforts
were sporadic, and recordkeeping dismal. There is a good
chance he disappeared into the masses of humanity
teeming in mid-century New York. Perhaps he stayed there.
Perhaps he made a life in some other corner of the newly
invigorated post-war nation. Some reports suggest he might
have become a U.S. citizen. Whatever might have
happened, he marks an important juncture in the history of
immigration imprisonment. When the doors of the Ellis
Island detention center clanged shut after his departure,
they never reopened for another soul, and the doors of
immigration prisons would not begin to open and close
routinely for a quarter century.
The United States of the mid-1950s was certainly
different from today’s version in many respects, but there
was not a radically different vision of migrants.
Scapegoating and demonizing were rampant then as they
are now. Indeed, the very same year that the INS shuttered
most of its detention operations, the prestigious academic
journal the Stanford Law Review published an article titled
“Wetbacks: Can the States Act to Curb Illegal Entry?”14
There was no effort to shy away from the demeaning, racist
term “wetback.” That year and the next, the INS, with the
cooperation of Mexican authorities, launched “Operation
Wetback.”15 Under the new leadership of retired general
Joseph Swing, a “longtime Mexican hater,” the INS’s
enforcement strategy was patterned after military
campaigns. It featured quick mobilization of large forces to
stop migrants from entering the United States and rounding
up those already inside.16 Throwing into overdrive tactics
the INS had been using over the previous decade, agents
arrested Mexicans throughout the Southwest and in cities
like Chicago that had large Mexican populations, forced
them onto trucks and trains, and deported them. Driven by
a single-minded desire to maintain Mexicans as disposable
laborers, INS officials handed deportees to waiting Mexican
officials, who promptly sent them into the Mexican interior
“where work was plentiful.”17 Neither INS officials nor their
Mexican counterparts seemed to care much about who they
actually targeted. Among the deported were an unknown
number of U.S. citizens.18
Why did the United States shift away from detention
despite widespread animus of Mexicans and a history of
confinement? The answer lies in convenience and selfinterest rather than altruism. Immigration prisons are
expensive to the federal government, which pays the cost of
buildings, guards, and food. By 1954, when the INS
announced that it would end detention except in
extraordinary situations, Angel Island had burned down and
Ellis Island was in need of repair. Closing the Ellis Island
prison saved the government $900,000, Attorney General
Herbert Brownell reportedly claimed, about $8.5 million in
2018 dollars.19
Immigration prisons are also enormously costly to the
businesses that would otherwise be tapping migrants as
cheap labor. Just like today, major industries in the midtwentieth century relied on poor workers to bring products
to market and keep office doors open. After the stockmarket collapse of 1929, low-wage workers and poor
farmers headed west, forever memorialized by Dorothea
Lange’s 1936 photograph Migrant Mother and John
Steinbeck’s Grapes of Wrath, published in 1939. Within a
few years, most of the world was facing off in battles across
Europe and Asia. In the United States, young men joined the
military, leaving space for white women to join the paid
workforce in large numbers. Like Naomi Parker Fraley, the
real-life inspiration for the World War II–era “Rosie the
Riveter” posters, they tended toward the urban industrial
activity powering the war effort.
In the rural fields where the nation’s food supply grew,
the picture was markedly different. There, migrants, mostly
from Mexico, arrived to pick cotton, pluck apples, and tend
grapevines. The five million Mexicans who came to the
United States between 1942 and 1964 under the auspices of
the Bracero Program almost all headed to the fields. During
the 1950s, while war raged in Korea, braceros made up over
half of the workers picking labor-intensive crops like oranges
and tomatoes in California.20
Keeping workers in the fields was essential to the
business of agriculture. Prisons were not compatible with an
agricultural industry newly dependent on cheap migrant
labor. After all, a migrant who was locked up was a migrant
who could not work. To keep employers happy, officials
typically kept themselves in the dark about immigration-law
violations. Policing of the border was sparse. The Border
Patrol didn’t exist until 1924, and around the middle of the
century, the agency could count on no more than 1,800
agents to patrol the nation’s boundaries.21
migrants would defeat the purpose of employers’ and
government officials’ efforts.
Back then the law helped make migrants “ready to go to
work when needed; to be gone when not needed,” and it
does so now as well. Immigration officials are authorized to
question anyone they think is not a U.S. citizen about their
immigration status. If they are unconvinced that a person
has the government’s permission to be in the United States,
they can arrest and start the deportation process.
Ordinarily, the federal government’s power to stop and
question people is curtailed by the Fourth Amendment. The
politically and economically powerful men who led the
young nation in the late eighteenth century were well aware
of the frightening prospects of unimpeded law enforcement.
Added to the federal Constitution in response to the British
monarch’s practice of barging into people’s homes and
workplaces searching for evidence of wrongdoing, the
Fourth Amendment served as a simple obstacle between
the people and the government. If law enforcement officers
want to prevent someone from going about their day, they
need to have actual evidence of wrongdoing.
To breathe life into the suspicion requirement, they
mandated how much suspicion. A hunch is not enough. This
is the Fourth Amendment’s famous probable-cause
requirement. “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,” the
amendment’s simple language reads. Law enforcement
officers can get a warrant only if they convince a judge that
they have gathered evidence that the person targeted
committed a crime. It is a powerful limitation on the
government’s power.
When I cover the Fourth Amendment in my law school
classes, I push my students to consider their reaction to
police arriving at their workplace. Imagine yourself in this
situation, I tell them: You are at work one day. Your
workplace, like many others, consists of rows of individual
workstations. There are about forty people who work with
you. Without warning, police officers suddenly rush through
the three entrances into the building. Immediately, some
officers position themselves by all the exits—the doors,
emergency exits, and windows. You guess there are
between fifteen and twenty-five cops. They are shouting
“police” and wearing police uniforms and badges. The
officers who are not positioned at the exits start to move
through the building, going workstation to workstation from
the front of the office to the back, asking questions of
everyone. Because your workstation is toward the back, you
can’t hear what they’re asking, but you can see that most
people are asked a few questions—you guess three or four—
before the officers move on. Some people reach into their
purses or wallets to take out papers or what look like
identification cards, they hand them to the officers, and
then the officers move on. Other people, though, are being
handcuffed and escorted out the door that leads to the
parking lot. Later, I tell my students, you learn that they
were being put into police vans. While you’re busy trying to
look like you’re doing your work, you notice that the officers
are all carrying guns. Do you feel like you can leave or
refuse to speak to the officers?
This scenario is not my invention. Replace the police
officers with INS agents, put everyone inside the nowdefunct Davis Pleating and Button Company in Los Angeles,
take a step back in time to 1977, and these details come
from the Supreme Court’s recounting of the events that led
to its decision in INS v. Delgado. In that case, the Court
announced that the people who suddenly found their
worksite overrun by INS agents had not been deprived of
the freedom to move about as they liked. In the language of
the Fourth Amendment, they had not been “seized,”
because a reasonable person in that situation would think
they could leave or end the encounter with the officers. The
Court explained that if the workers’ freedom of movement
was restricted, it was restricted by their “voluntary
obligations to their employer.”22
It was the need to make
money that kept them there; not the swarm of armed INS
agents. As for the officers positioned at the doors, even
though their “obvious presence … was to insure that all
persons in the factories were questioned … the mere
possibility that they would be questioned if they sought to
leave the buildings should not have resulted in any
reasonable apprehension by any of them that they would be
seized or detained in any meaningful way.”23 Delgado
remains good law.
Delgado wasn’t the only case. The year before a mass of
INS agents raided Davis Pleating, two of their colleagues
visited a car repair shop in San Mateo, California, just south
of where San Francisco International Airport now sits. They
wanted to look around and talk to some of the mechanics
about their immigration status. Despite the Fourth
Amendment’s expectation that law enforcement agents
must obtain a warrant, they didn’t have one. For his part,
the owner, in the words of former Supreme Court Justice
Sandra Day O’Connor, “firmly refused to allow the agents to
interview his employees.”24 Nonetheless, the agents won
out. While one distracted the owner—what Justice O’Connor
politely describes as “engaged the proprietor in
conversation”—another walked into the shop and began
questioning Adán López-Mendoza. Soon, López-Mendoza
was under arrest by the INS agent, and eventually the
government tried to deport him based on statements he
made to them.25
Insisting he had been arrested in violation
of the Fourth Amendment, he took his deportation fight all
the way to the Supreme Court. That constitutional
requirement, the Court announced, has little relevance in
immigration courts. The immigration courts, Justice
O’Connor wrote, “correctly ruled that ‘the mere fact of an
illegal arrest has no bearing on a subsequent deportation
proceeding.’”26 Pages later, Justice O’Connor added two
exceptions: an illegal arrest might be problematic if it was
“egregious” or an example of “widespread” unconstitutional
policing.27 Ordinary or one-off constitutional violations are
acceptable when deciding who should be picked out of their
workplace and deported.
While the Supreme Court’s decisions in Delgado and
López-Mendoza identify how far immigration-law
enforcement veers from ordinary constitutional principles,
the underlying facts are not especially unusual. Historically,
workplace raids are anything but uncommon. Meanwhile,
migrant workers have had a hard time finding passionate
defenders, even among likely allies in the labor movement.
For most of the nineteenth and twentieth centuries, unions
stood more closely aligned with employers and government
officials than with migrants. Rather than fend off
government targeting of vulnerable laborers, many unions
actually fanned the flames of xenophobia. They wanted
more government interventions to pick off migrant workers,
whom they viewed, in the most charitable light, as cheap
alternatives to native-born workers. Just as often, unions
voiced their concerns in blatantly racist terms. They
complained of heathen “coolies” from China and backward
“hunkies” from Hungary. Even the famed United Farm
Workers Union, led by César Chávez and Dolores Huerta,
cleaved migrants into two camps: legal and illegal. The
former, it claimed, should be treated humanely; the latter
should be rounded up and deported.28
Welcomed as low-paid workers, immigrants were
constantly reminded of their precarious position in the
United States. They lived with the fear that employers might
team up with immigration officials. They faced the reality
that, in the immigrant workplace, the Fourth Amendment is
a distant dream. They were aware that their obvious allies in
the labor movement saw them as threats. Arrest,
imprisonment, and deportation existed as part of the
calculus of fear. For most, it was a threat, not a reality. But
fear matters.
The waning of immigration imprisonment in the middle of
the twentieth century didn’t happen in a vacuum. In the
1960s and 1970s, the country’s experiment with
incarceration was rapidly losing favor. In 1975, a littleknown social services worker in Kentucky, Calvin Dodge,
spearheaded an impressive collection of essays announcing
a path toward prison abolition. “Imprisonment as a primary
sanction should be eliminated,” Dodge wrote simply and
emphatically. It sounds delusional today, decades into a
national love affair with forced confinement. Prisons in the
United States teetered toward extinction, and impossible as
it may be to believe, the United States was on the verge of
becoming “a nation without prisons.”1
The contributors whom Dodge assembled were no
collection of radical leftists. They were staid professionals
well within the mainstream: academics, a judge, and even a
presidential commission appointed by none other than
Richard Nixon. A research group with links to the Justice
Department claimed “there [is] reason … for hope that
America might lead the world away from the use of cages
for criminals.”2
Its abolitionist tone was unmistakable.
Humans could not rightfully be caged. Lodging a brutal
critique of prisons, the Nixon-created National Advisory
Commission on Criminal Justice Standards wrote, “[The
prison] is obsolete, cannot be reformed, should not be
perpetuated through the false hope of forced ‘treatment’; it
should be repudiated as useless for any purpose other than
locking away persons who are too dangerous to be allowed
at large in free society.”3
In this moment in the nation’s
history, prisons were the past, not the future. “By the mid1970s,” writes the sociologist Loïc Wacquant, “a broad
consensus had formed … according to which the future of
the prison in the United States was anything but bright.”4
The United States of the early 1970s held roughly a
quarter-million people in all prisons and jails. Today, there
are almost that many serving life sentences, with more than
2.2 million people locked up. Far outpacing the willingness
of other countries to imprison its residents, clearly the
Commission’s declaration of the prison’s uselessness lost
favor. It wouldn’t be until 2003 when someone else
prominently took up the abolitionist cause. When that
happened, it came from Angela Davis, the radical leftist
intellectual and former political prisoner who once found
herself on the FBI’s list of Ten Most Wanted Fugitives.5
The nation’s transformation from a country on the verge
of dismantling prisons to one that puts them at the center of
social planning was not limited to the common focus of
advocates and policymakers: people caught up in the war
on drugs. On the contrary, the nation’s well-known
fetishization of imprisonment is the result of a wholesale
restructuring of social relations. It has swept up the African
American men targeted by anti-drug policies, to be sure, but
it does not end there.
Like the more familiar drug-war policies, the modern era
of immigration imprisonment began in the decades
following the civil rights struggles of the 1960s and 1970s.
Successful efforts to ban blatant displays of discrimination
required changes in the law and, equally significant, in
culture. The Civil Rights Act of 1964 and the Voting Rights
Act of 1965 marked major legal victories and ushered in a
new era, one in which the old racial hierarchy was both
illegal and morally indefensible. To a limited degree, that
hopeful vision came to pass. People of color could tap legal
remedies defensively—for example, to fight discrimination
in public accommodations—and offensively—for example, to
enroll in college.
But old ways die hard, and the post–civil rights decades
illustrated that the ideology of white supremacy that was
entrenched in law and culture did not suddenly disappear
and did not exempt immigration.
The civil rights reforms of the mid-twentieth century were
accompanied by a tumult in social relations. The Black
Panther Party, Southern Christian Leadership Conference,
Brown Berets, and American Indian Movement catapulted
confrontational civil rights activism onto televisions and
newspaper front pages. Schools became sites of protest,
and churches became cradles of dissent. Few could miss the
upheaval in social relations happening day by day. Coming
at the same time as sustained anti-war protests were
pushing the United States out of its bloody conflict in
Vietnam and political giants like Martin Luther King Jr. and
the Kennedy brothers were being assassinated, it seemed as
if the United States was being unglued. The old ways of
being were challenged, decried as morally debased, and
In the rhetorical struggle between civil rights and law and
order, racism was pushed just beneath the surface of law
and culture. In a stunningly short period of time, crime took
race’s position as the recognized socially acceptable marker
of dangerousness, and concern about crime rates became
the public face of racism. Before becoming famous for his
opposition to integration, Alabama’s Governor George
Wallace made a name for himself by linking civil rights
activism to a perceived breakdown in law and order. Other
politicians and political strategists soon picked up on the
tactic as a way of currying favor with disaffected white
But no one was nearly as successful as Richard Nixon.
Trying to win the White House, Nixon hoped to capitalize on
white disaffection with the quakes rattling U.S. law and
culture. “The Nixon campaign in 1968, and the Nixon White
House after that, had two enemies: the antiwar left and
black people,” the disgraced Nixon official John Ehrlichman
told a reporter years later. “We knew we couldn’t make it
illegal to be either against the war or black, but by getting
the public to associate the hippies with marijuana and
blacks with heroin, and then criminalizing both heavily, we
could disrupt those communities. We could arrest their
leaders, raid their homes, break up their meetings, and vilify
them night after night on the evening news. Did we know
we were lying about the drugs? Of course we did.”6
Ehrlichman’s admission sounds too honest to be true. Few
people would be so open about their moral depravity. But
Ehrlichman had already shown himself to be a man of few
scruples. He was, in the words of his New York Times
obituary, “Nixon’s pugnacious defender” who went to prison
for his involvement in Watergate.
Tapping fears of crime, as Ehrlichman suggests, was a
powerful political ploy. Before the Nixon administration
paired social decay with drug use and civil rights activism,
few people in the United States had concerned themselves
about crime, even as crime rates rose in the 1960s as the
baby-boom generation reached the main years during which
adults commit crimes. With Nixon at the helm, politicians
began to harp about the crime ravaging U.S. cities.
Eventually, discussions of crime among the political elite
spread to the broader public, resulting in more widespread
concern about crime, especially illicit drug activity. By the
time President Reagan grabbed the anti-crime banner to
launch his well-known “war on drugs,” the U.S. public was
primed to embrace the drug-fighting hysteria that
dominated the last decades of the twentieth century.
The anti-crime sentiment of the 1960s, 1970s, and 1980s
had a lasting effect precisely because it arose as a
substitute for the racism that could no longer be expressed
as openly. Instead of misguided youth, the criminals of the
late twentieth century were depicted as “incorrigible”
perpetrators with little hope for redemption. These “young
minority males, caught up in the underclass world of crime,
drugs, broken families, and welfare dependency,” as
sociologist David Garland summarized the dominant rhetoric
of the time, were “desperate, driven, and capable of
mindless violence.”8 Twisting fact into fear, politicians
depicted them as vicious savages. George H.W. Bush
propelled himself into the White House by showcasing Willie
Horton, a black man who had fled a weekendrelease
program in Massachusetts and raped a white woman, in an
ad against the state’s governor and Democratic presidential
candidate, Michael Dukakis. Eight years later, then first lady
Hillary Clinton portrayed gang members as psychopaths.
“They are not just gangs of kids anymore,” she told a New
Hampshire audience in 1996, harkening to a bygone era
when troubled youth could be expected to reform. “They are
often the kinds of kids that are called superpredators—no
conscience, no empathy.”9
In the new penology, these
superpredators had a target. Despite the fact that blacks
are more likely to be crime victims, middle-class white
suburbanites became idealized as the victims of the new
crime wave.10
The war on crime—and its drug-focused leading edge—
became a seemingly intractable feature of law and policy. In
the 1980s and 1990s, a new generation of policing
philosophies emerged to address the political rhetoric’s
attention to the ostensibly extreme danger of the new
criminality. Nothing emblematizes this policing trend better
than the “broken windows theory” popularized in a 1982
magazine article by James Q. Wilson and George L. Kelling.
Minor incidents, Wilson and Kelling posited, are the start of
much greater lawlessness. If left unattended, a single
broken window will soon be joined by a building full of
broken windows. Worse is likely to follow. Police should
engage in “order-maintenance” tactics that view the most
trivial of offenses against public order as nothing short of
the start down the long road toward chaos and violence.11
Everything is a priority, at least if the offender is poor and
not white. They should do what they must to stop it.
At the same time, prominent legislators attacked the
neutrality of the judicial process. Instead of a criminal
justice triangle in which the prosecutor, representing the
whole of the community, faces off against the defendant
under the watchful eye of the neutral judge, the gap
between defendants and judges was thought to have
closed. “The judge remains a figure of suspicion, a person
with a propensity to violate public safety, little different in
public confidence from the figure of the criminal before
them,” wrote legal scholar Jonathan Simon.12 The new
criminal threat, then, was not coming only from moral
deviants. The politicians and pundits claiming to represent
the endangered law-abiding citizenry also came to view
judges suspiciously.
In response, legislatures across the country began
stripping judges of discretion to identify a suitable sentence
for convicted offenders. Led by Congress, legislatures
adopted fixed sentencing ranges and mandatory minimum
prison terms. In 1984, Congress ordered the creation of the
United States Sentencing Commission and charged it with
developing sentencing guidelines for judges’ use. That year,
the state of Washington adopted a sentencing scheme in
which convicted offenders were required to serve a
predetermined percentage of their prison sentence before
becoming eligible for release. Called “truth-in-sentencing”
laws, these mandates exploded in popularity after 1994,
when Congress dangled the promise of grants for new
prisons to states that required offenders serve at least 85
percent of their sentence.
More people were prosecuted, they faced longer
sentences, more people went to jail, and there were fewer
ways out before the sentence ran its course. By the end of
the 1990s, the nation’s prison population had skyrocketed.
Over the next fifteen years, it kept growing.
The same anti-drug hysteria that swept criminal policing
took hold in immigration law. Much like inner-city black men,
migrants were depicted as depraved purveyors of death and
moral decay, especially those from south of the border. In
1980, for example, 125,000 Cubans who set off from the
port of Mariel reached Florida on rickety rafts after the
Cuban government announced that anyone who wanted to
leave could do so. Unlike earlier generations of Cuban
migrants, these so-called marielitos were largely poor and
dark-skinned, and in the dominant discourse of the day,
they were depicted as cast-offs from Castro’s prisons. U.S.
News & World Report ran a story in 1984 emblazoned with
the headline “Castro’s ‘Crime Bomb’ Inside U.S.” Soon
Hollywood added to the factually inaccurate hysteria. In the
1980s blockbuster and cult classic Scarface, an adaptation
of the 1932 film of the same name, Al Pacino plays Tony
Montana, a bloodthirsty psychopath willing to kill just about
anyone to rise to the top of Miami’s drug world. The film’s
opening scene expressly connects Pacino’s character to the
Mariel exodus. Castro, the film claims in text that flashes on
the screen, used the Mariel incident to send “the dregs of
his jails” to the United States.
Cubans may have dominated sensational media
depictions of migrant involvement in criminal activity, but
they did not monopolize the political rhetoric. Haitians and
Jamaicans were said to be bringing drugs into the United
States, with Colombians being no better. “Jamaicans,”
claimed Representative Lamar Smith in 1987, “mostly illegal
aliens, have developed a massive criminal organization that
imports and distributes narcotics.”13
Federal officials tapped their law enforcement powers to
control the perceived threat that migrants posed. The Mariel
Cubans were sent to federal penitentiaries. That infamous
U.S. News & World Report article from 1984 captured their
treatment in a caption accompanying a photograph of two
Cubans that explained that they were incarcerated in a
Georgia federal prison. To accommodate Cubans and
Haitians, who were also fleeing a totalitarian government,
the INS opened the Krome Avenue Detention Center in
Miami, a facility that remains operational today. “Detention
of aliens seeking asylum was necessary to discourage
people like the Haitians from setting sail in the first place,”
said Attorney General William French Smith in 1982. That
year, President Reagan ordered the INS to detain all Haitians
who arrived in the United States clandestinely.
14 Soon,
Haitian migrants were filling military bases, federal prisons,
and prison-like INS detention centers.
Expansion wasn’t without controversy. A Republican U.S.
senator from Texas opposed a proposed immigration prison
on blatantly racist grounds: “You have tripled the black
population of Big Springs, Texas, and not even advised me
in advance,” John Tower complained to Reagan
administration officials, citing an earlier transfer of Haitians
into a federal prison situated in a rural town. For different
reasons, the White House’s Office of Management and
Budget was skeptical. In internal deliberations, it expressed
reservations about the INS’s ability to manage a large
detention facility. It also cautioned that detention might
beget detention. Expanding the INS’s capacity to detain,
OMB warned, “may encourage INS to detain aliens longer in
order to justify the facility’s need.”15
Meanwhile, migration from Central America grew. Midway
through the century, Central America had become a site for
proxy battles between the United States and the Soviet
Union. To escape the bloodshed in countries like El Salvador,
Nicaragua, and Guatemala in the 1980s, millions of people
sought refuge in the United States. They viewed the
powerhouse to the north as a beacon of safety and
Reagan administration officials, however, depicted them
as Marxist-aligned peasants disrespectful of our laws and
ideologically dangerous to our way of life. Standing
alongside insurgent contras waging a U.S.-backed rebellion
against the leftist Sandinista government in Nicaragua, in
1986 President Reagan left no doubt about his view of the
region’s precarious strategic importance. Soviet allies in
Nicaragua, he warned, were “just two days’ driving time
from Harlingen, Texas,” about fifteen minutes south of
where today’s Willacy County immigration prison sits.16
Arriving at the nation’s southern border, migrants were met
with the beginnings of today’s vast immigration prison
system. The INS ramped up its policing resources as it tried
to keep migrants confined to the border region that the
agency itself referred to as federal “reservations,” evoking
the treatment of native people during the period of
westward expansion. South Texas became so heavily policed
for a time that the U.S. senator Lloyd Bentsen went so far as
to call it a “massive detention camp.” At the same time,
federal officials deliberately rejected as many claims as
possible. The INS denied an astonishing 97 percent of
asylum petitions by Salvadorans and 99 percent filed by
Guatemalans until prolonged legal challenges forced them
to consider every application on its own merit.17
Jenny Flores was one of those. Her birthplace, El
Salvador, was in the midst of war when fifteen-year-old
Jenny headed north in 1985. There, she hoped to reunite
with her aunt, a U.S. citizen. Instead, the INS locked her up
in a converted hotel surrounded by concertina wire. As was
routine, she was forced to remove her clothing and was
searched. Decades later, her legacy lives on. She is the
named plaintiff in the case that still sets the bar for the
government’s treatment of detained children.
Even now, with the Cold War long over, the violence and
political instability that the United States was involved in
continues to impact life in the region. Many of the children
displaced by Central America’s violence in the 1980s and
1990s wound up in the United States. In cities decimated by
deindustrialization and racism, they assimilated into urban
America’s budding gang culture. MS-13, the transnational
gang that Presidents Obama and Trump frequently rail
against, got its start in this environment. For some young
people, gang membership led to crime, followed by
deportation. Born in San Salvador, but bred in Los Angeles,
Borromeo Henríquez Solórzano was deported to the country
of his birth, but not before joining MS-13 in its early days.
Now dubbed El Diablito, Little Devil, he’s said to be at the
top of the MS-13 hierarchy. The U.S. government thinks he’s
so influential that in 2013 the Treasury froze his assets.18
the backs of these refugees-turned-deportees, MS-13
expanded to Central America, only to return to the United
States to complete the circle. Everywhere, MS-13 upends
lives, forcing young people across Central America these
days to choose between recruitment, violence, or migration.
Mexicans were also part of this great migration north.
The political and economic elite of both the United States
and Mexico partnered to push large swaths of the Mexican
population onto the migratory path northward. In the 1980s,
the two countries collaborated on the development of a
border-region manufacturing industry. Known as
maquiladoras, these plants recruited Mexican youth from
farther south to staff high-demand assembly processes
piecing together common items like car parts and TV
screens. Once in view of the United States, many internal
migrants eventually continued north. Similarly, the North
American Free Trade Agreement, launched in 1994 by
Canada, Mexico, and the United States, made traditional
subsistence farming more difficult for a generation of young
Mexicans, leaving them little choice but to head to Mexican
cities or, frequently, the United States to hire themselves
out as inexpensive wage laborers.19
During the last quarter century of the twentieth century,
millions made the United States their home. Soon, familiar
patterns emerged. Young people, mostly men, would head
north, following networks of relatives and friends. They
worked the citrus groves of Florida, the onion fields of South
Texas, the vegetable farms of California, even the apple
orchards of Washington and the neat rows of Idaho’s famous
potatoes, helping explain how a batch of my cousins was
born near Boise. After decades of migration to the United
States, ordinary life developed around this pattern.
Economic development in the countries that migrants came
from relied on earnings from the United States, and
migration became a sort of rite of passage in some
Traditional movement back and forth, year after year,
had become increasingly difficult starting in the 1980s,
when the INS sent more law enforcement agents and money
to South Texas, but circular migration plummeted after
1996, when Democratic president Bill Clinton worked with a
Republican Congress to radically boost the federal
government’s border-policing forces. From 1995 to 2000,
the number of Border Patrol agents doubled from roughly
4,000 to over 8,000.20 This left unauthorized migrants with
an impossible choice. Continuing their circular migration
pattern might mean never coming back. Either the newly
bolstered Border Patrol might catch you or, worse, the
desert would. In one fifteen-year period, a single
government agency, the Pima County Medical Examiner in
Tucson, dealt with the bodies of 2,615 migrants who had lost
their lives crossing the Arizona desert.21
The alternative was to stay put in the United States, as
many did. From 1986 to 2006, the number of migrants living
in the United States without the federal government’s
permission quadrupled from a population of roughly 3
million to a population of 12 million. Migrants came
clandestinely but didn’t leave. All the while, border policing
skyrocketed. The federal government allocated more money
and employed more Border Patrol agents, who, in turn,
spent more time trying to catch people sneaking into the
United States. In a detailed study of Mexican migrants, the
researchers Doug Massey, Jorge Durand, and Karen Pren
found that increasing border enforcement didn’t impact the
likelihood that migrants could cross the border. The trip
became more difficult and more expensive, but the outcome
didn’t change. People got across just as often as they had
before the United States began pouring money into border
policing. Only now, they stayed in the north.22
Effectively stuck in the United States, without any way of
legalizing their immigration status, they became easily
exploited, with repercussions that can be seen to this day.
Like with braceros, employers have the upper hand.
Migrants are left to work under the table or under false
pretenses, either of which can lead to ICE’s showing up to
make an arrest. The low unionization rate in the United
States means that traditional sources of labor power are
largely ineffectual. And thanks to a 2002 Supreme Court
decision, employers aren’t even liable for backpay if they
fire unauthorized workers who dare unionize.23 Rather than
reducing unauthorized migration, more border enforcement
means more unauthorized migrants will be cheaper for
In their border-enforcement study, Massey and his
colleagues described a “tax” that unauthorized migrants
were forced to pay as policing increased. Once the path
northward became more dangerous, it became necessary to
hire professional smugglers. That raised the cost of the
actual trip. Unable to move around as easily, migrants
couldn’t compete for higher wages by leaving for a new job.
Instead, to land jobs, they had to rely on middlemen, who
expected to get a cut that previously would’ve gone to the
migrants themselves. As a result, they earned 25 percent
less after border policing increased than they had in the
years before.24 More border policing didn’t mean fewer
migrants. More border policing just meant more profit from
border policing.
Police officials, politicians, and academics think of brokenwindows policing as a feature of crime fighting. But a
variant of its focus on low-level infractions appeared in
immigration law in the 1980s and 1990s, creating the
foundation for the modern legal architecture of immigration
imprisonment. Beginning in the mid-1980s, Congress
regularly made it easier to confine migrants. Through the
Anti-Drug Abuse Act of 1986, for example, Congress set the
legal groundwork for immigration detainers, requests from
immigration authorities to local police asking them to keep a
particular person locked up so that federal officials could
move forward with an immigration case. Since then,
detainers have come to be a central tool for sweeping
people from local custody to ICE detention. In 2011 alone,
ICE officers sent 310,000 detainer requests to state prisons
and local jails. Illustrating detainers’ continued relevance,
eight years later, three justices of the Supreme Court
complained that “state and local officials sometimes rebuff
the Government’s request that they give notice when a
criminal alien will be released.”25
Detainers are important, but other developments also
contributed to the growing incarceration of migrants. Two
years after enacting the detainer legislation, the Anti-Drug
Abuse Act of 1988 added the concept of the “aggravated
felony” into the immigration-law lexicon. Originally defined
to include only a small handful of serious offenses (murder,
illicit trafficking in firearms, and drug trafficking), the
aggravated felony concept now includes twenty-one
subparts—some with their own subparts. The label is as
sinister as it is misleading. Justice Samuel Alito and four of
his conservative colleagues on the Supreme Court claimed
that this includes “certain dangerous crimes.”26
Instead of
being limited to the worst offenses, the list of aggravated
felonies includes misdemeanors and crimes that few would
describe as severe; tax fraud and shoplifting make the list.
Reflecting the era’s skepticism of judges, Congress denied
immigration judges the discretion to release anyone
convicted of an aggravated felony. Everyone convicted of an
aggravated felony in the last three decades has been
detained. This was the beginning of modern mandatory
detention for immigrants.
Not content to stop there, in 1990 Congress made it
easier for the INS to take hold of people convicted of state
drug offenses.27
In 1994, the very law that Hillary Clinton
was defending when she made her “superpredators”
comment required the construction of two detention centers
for “criminal aliens” and created a reimbursement program
that incentivizes local law enforcement inquiries about
immigration status. In 2017, the reimbursement program,
called the State Criminal Alien Assistance Program, handed
$190 million to 680 cities and counties.
To round out the decade, in 1996 Congress adopted two
laws that, combined, produced a “seismic change” in
immigration detention.28 The Anti-terrorism and Effective
Death Penalty Act expanded the mandatory detention
requirement to include all controlled substances. Later that
year, the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) expanded mandatory detention
again. That law facilitated federal immigration officials’
collaborations with state and local police through newly
created 287(g) agreements. Under these, state and local
cops are essentially deputized to act as federal immigration
officers. Arizona’s lightning rod of a sheriff Joe Arpaio took
advantage of this to illegally target Latinos, leading the
Obama Justice Department to end its relationship with him.
Eventually, Arpaio lost his job. But Arpaio’s demise didn’t
spell the 287(g) program’s end. In the spring of 2018,
seventy-eight agencies in twenty states had formal
agreements with ICE in effect.
Phat Dinh Truong’s legal battle illustrates how quickly
and dramatically immigration law came to embrace criminal
law in the 1980s and 1990s. Born in Vietnam in 1954, the
same year in which Ho Chi Minh’s communist forces
prevailed against the French and the United States threw its
support behind Ngo Dinh Diem’s anticommunist
government in the south, Truong came to the United States
as a twenty-seven-year-old refugee and soon became a
lawful permanent resident. A few years later, in 1985, he
committed robbery and was eventually convicted. It appears
that he stayed out of trouble after that incident, and still
immigration officials tried deporting him ten years later
when he returned from a business trip to China. When he
committed the crime, no one had ever heard of an
aggravated felony. It wouldn’t become part of immigration
law for another three years. But by the time he returned to
the United States from China, immigration law had come to
include robbery in its growing list of aggravated felonies
requiring confinement and deportation. Unlike criminal law,
immigration law lets legislators raise the stakes of illegal
activity even years later.
Supporting the industry that gave immigration prisons
their start, IIRIRA also included a requirement that the INS—
now ICE—consider leasing or purchasing existing detention
facilities over building its own. To private prison
entrepreneur Tom Beasley, remember, selling prisons is like
selling hamburgers. IIRIRA is a reminder that it’s a lot easier
to sell hamburgers if you force hungry people to browse the
menu at McDonald’s.
Whether tied to a dangerous ideology, unwanted drug
activity, or simply a morally depraved unwillingness to
comply with legal requirements, the migrants of the 1980s
were framed as voluntary wrongdoers. They had chosen to
align with Marxist rebels or drug traffickers. They had
elected to become common criminals. At best, they were
economic migrants who lacked respect for the rule of law.
Regardless, none deserved an open-armed embrace. And
none received it.
When the Reagan administration first turned to prisons to
address migration, it sent a young Justice Department
lawyer, future New York City mayor Rudolph Giuliani, to
Capitol Hill. Pitching the administration’s plans to Congress,
Giuliani said it needed $35 million to build two prisons. “This
additional space is urgently needed if we are able to
adequately enforce our immigration laws,” he claimed in
1982. Congressman Robert Kastenmeier, a Wisconsin
Democrat, wasn’t easily convinced. “From 1954 until last
summer,” the congressman said, “the United States
followed a general policy of releasing aliens pending
immigration matters.… This was, and still is, a wise policy.”30
Eventually, of course, Giuliani’s position won, and a radical
transition in immigration policy began.
The new century did not bring any break from the
rhetoric of migrant criminality that had come to dominate
political conversations in the 1980s and 1990s. The
extraordinary demands of the days immediately following
September 11, 2001, led to extraordinary confinement as
the INS ramped up its power to imprison. Attorney General
John Ashcroft promised, “If you overstay your visa—even by
one day—we will arrest you.” Tens of thousands of people
from predominantly Muslim countries were required to
check in with immigration officials. Many were not allowed
to walk out the same doors they had walked in. With the
threat of terrorism sheathing law enforcement plans, a
Muslim man accused of “anti-American statements”—which,
in the words of a later Justice Department review, “were
very general and did not involve threats of violence or
suggest any direct connection to terrorism”—was among
approximately 750 migrants detained for nothing more than
allegedly violating immigration law.
31 They were held for
long periods in INS facilities in Oakdale, Louisiana, and
Miami; Bureau of Prisons sites in Kansas and New York; and
county jails across New Jersey.
The most notorious feature of this episode was the harsh
conditions inside the Metropolitan Detention Center, a
maximum-security federal prison in Brooklyn. Inside the
MDC, detainees were sent to a special high-security wing of
the prison. These cells are designed for people deemed too
dangerous to be anywhere near other prisoners; they are
the most restrictive type of cell in the federal prison system.
Though the “administrative maximum” special housing unit
wasn’t new, the September 11 detainees were sent there
without the usual individualized review to determine
dangerousness. No one bothered to ask whether these
people should be in this place. Nonetheless, as the Justice
Department’s inspector general would disclose two years
later, they “were subjected to the most restrictive conditions
of confinement authorized by BOP policy, including
‘lockdown’ for 23 hours a day, restrictive escort procedures
for all movement outside of the ADMAX SHU cells, and tight
limits on the frequency and duration of legal telephone
calls.” For a time, the inspector general added, they were
even subjected to a “communications blackout.” When
someone called to ask if one of the September 11 detainees
was being held there, staff “often told people inquiring …
that the detainee was not being held at MDC when, in fact,
he was.”32 Swallowed by the force of immigration
imprisonment, these people effectively disappeared from
the face of the Earth.
Already enmeshed in public and private vehicles of
wealth creation and lodged in the minds of elected officials
as economic engines, immigration prisons are ripe for
growth. The number of immigration prisoners held by the
U.S. Marshals Service, ICE, and the Bureau of Prisons grows
steadily. Even if it doesn’t expand every year, it is
unmistakably on an upward trajectory. By the time President
Obama exited the White House in January 2017, the nation’s
immigration prison population had reached record levels.
President Trump promised to build on that, and his early
years in office suggested he was heading in that direction.
ICE transitioned from the Obama era to the Trump era,
surpassing its previous record high of 34,376 people
detained on average every day, reached in fiscal year 2016,
the last that fell completely within Obama’s tenure. The
following year—split about one-third under Obama and twothirds under Trump—the agency detained 38,106 people
each day.
In the first year fully with Trump at the helm, ICE
confined 42,188 people daily.
Meanwhile, the legal authorization for more confinement
continues to get more expansive. In 2014, ICE’s lawyers
repeatedly told federal judges that they needed to detain
women and children to deter others from coming, despite
established legal principles that deterrence isn’t a
permissible justification for civil detention; it’s only a reason
to punish people criminally. Recognizing that courts were
unwilling to let the boundary between civil and criminal
confinement slip so easily beyond recognition, DHS
eventually shifted course by dropping its deterrence
rationale. It did nothing to alter its practices, though.
Instead, it found more legally sound reasons to detain by
claiming that the families would disappear into the nation’s
interior or endanger the public.
Government officials remain creative in their attempts to
lock up more migrants. Federal prosecutors have
successfully staved off attempts to curtail special
procedures that let them run migrants through criminal
proceedings en masse. Judges oversee dozens—as many as
one hundred at times—of migrants at once in hearings
organized under Operation Streamline. The response, a
federal appeals court wrote, is “an indistinct murmur or
medley of yeses.”34 Brought to courthouses by U.S.
Marshals, they are frequently shackled at the hands and
feet in a display of “cattle call” justice, one defense attorney
Outside the federal courtrooms, officials have also
confined people inside stables built for cows, literally. On the
morning of May 12, 2008, roughly nine hundred law
enforcement agents—from local police to ICE officers—
raided an enormous meatpacking plant in Postville, Iowa.
According to a press release issued that day by federal
prosecutors, “agents executed a criminal search warrant …
for evidence relating to aggravated identity theft, fraudulent
use of Social Security numbers and other crimes, as well as
a civil search warrant for people illegally in the United
All told, they arrested almost four hundred migrants.
Most were sent to the National Cattle Congress, a centuryold fairground in nearby Waterloo where prized dairy cows
are trotted. There, the arrested migrants were taken in
groups of ten before a federal judge, who sat in a makeshift
court more commonly known to Cattle Congress regulars as
the “Electric Park Ballroom.” Almost all would soon plead
guilty to the federal crime of using false documents to
work.36 Ordinary workers had been turned into criminal
aliens and shipped to a sixty-acre fairground built to show
off stock animals. Erik Camayd-Freixas, a long-time
interpreter who was present at the Cattle Congress court,
recounted the experience he witnessed: “Driven single-file
in groups of 10, shackled at the wrists, waist and ankles,
chains dragging as they shuffled through, the
slaughterhouse workers were brought in for arraignment …
before marching out again to be bused to different county
jails.… It is no longer enough to deport them: we first have
to put them in chains.”37
Today, almost two decades into the twenty-first century,
imprisonment retains its central position in the nation’s
immigration law-enforcement apparatus, but it can no
longer be said to operate independently of other areas of
law. It is instead firmly entrenched in a broader
securitization regime, in which the government uses brute
force as evidence that it remains in control and that the
nation remains sovereign. In turn, the twenty-first-century
pursuit of security builds off the decades-long fetishization
of imprisonment. The prison is a social service, a public
good—even a humanitarian gesture. The United States
could, in the traditional criminal-law context, kill people, or,
in the immigration context, let migrants die in the desert.
Instead, the federal government sends them to facilities
that resemble “summer camp,” long-time ICE official
Matthew Albence told Congress in 2018, months before he
would be promoted to the agency’s second highest post.38
That the United States chooses to imprison instead is a sign
of graciousness: bare-knuckled, poisonous graciousness.
To the migrants locked up, most of whom come from
Latin America, the prison walls are just a concrete reminder
of their marginalized position within a global economic order
that prizes the disposability of exploitable labor. Sociologist
Tanya Golash-Boza calls this the “immigration industrial
complex.” With an obvious reference to President
Eisenhower’s famous lament about the federal
government’s increasing dependence on private
corporations to provide national security, Golash-Boza
describes a “convergence of interests” that lead to ever
harsher immigration policies. Following the financial and
political gains of immigration imprisonment allows us to see
“who benefits from immigration law enforcement” and
understand why it has become such an ingrained feature of
twenty-first-century policing.39
Immigration imprisonment sets the modern marker of
what the legal scholar Kevin Johnson calls the nation’s
“magic mirror.” It lets us see our inner selves—what our
worst demons would have us do to others even if we have a
hard time admitting it to ourselves. It lets us glimpse the
excesses to which we as a nation are willing to go when
unconstrained by our better selves. How we might demonize
our neighbors, fanning fear and destroying families. The
immigration prison is a reminder that human bondage
based on racial and economic markers of undesirability
can’t be relegated to some distant past. If we’re willing to
lock up people, we’ll find a reason. Most of the time the
targets will be people of color. We can call this a
coincidence, but we would be lying to ourselves.
Part II
From the outside, 200 Varick Street in Manhattan’s
Greenwich Village is unremarkable. Like other parts of the
city’s chic neighborhood, the street is noisy and congested.
People race down the sidewalk, while the sounds of taxis
and delivery trucks fill the air. Across the street, a Chipotle
hands out burritos and expensive guacamole. Since 1929,
the entire block between King Street and Houston Street has
been occupied by a twelve-story office tower built in the art
deco style that was popular at the time. The United States
Appraisers’ Stores Building, as it was originally known, was
designed as a warehouse for imported merchandise seized
by federal customs officials.1
Its original name is long gone,
and most people visiting the building in recent years are
headed to the ground-floor post office. Above, the
structure’s warehousing roots are reflected in a different
way. Instead of collecting goods shipped from abroad, the
Varick Street building held migrants facing the prospect of
removal from the United States. Instead of sorting mail, the
employees sorted people.
Back in 1994, activists protesting outside read a letter
written by Lulseged Dhine, at the time Varick Street’s
longest-serving prisoner. An Ethiopian Jew, Dhine fled his
homeland in 1978 after his family was killed by the
government because of their faith. But with a string of lowlevel drug crimes and a theft conviction on his record, all
racked up since arriving in the United States, he had
become a “criminal alien” before the term became popular
with politicians. “His criminal history is very severe,” an
immigration judge wrote in denying the asylum application
that Dhine filed after the INS caught up with him while
serving a one-year prison term for cocaine possession. “The
[federal government] is not obliged to shelter people from
despotic persecution abroad so that they may enjoy lawful
imprisonment in the United States,” a federal court wrote on
appeal.2 At Varick Street, Dhine had gone four years without
stepping foot outside. Still, he promised that, if released, he
would “leave all bitterness behind” and help other prisoners.
Two days later, he was moved to an Arizona prison “to
accommodate his request for fresh air and outdoor
recreation,” a government spokesman said with vindictive
irony. It would be another five years before Dhine found his
freedom. And it was only as recently as 2010, after years of
public pressure, that the government moved its last prisoner
out of Varick Street.3
Two thousand miles away, the private Eloy Detention
Center pokes out of the Arizona desert, seemingly despite
itself. “All you see is dust,” says Lauren Dasse, an Arizona
native and lawyer who has spent too many hours to count
inside the Eloy prison. Approaching Eloy after sunset, there
is an otherworldly feel to it. Bright lights blast through the
kind of darkness that only the desert brings. Driving there
from the highway connecting Tucson to Phoenix, for ten
miles the towering cacti straddling the road are all that
keeps watch. To me, it looks like something out of the XFiles. And when the wind picks up, clouds of dust sweep
through like Smoky Mountain fog.
There is nothing architecturally interesting about the Eloy
facility. It consists of barbed wire surrounding a series of
two-story buildings: cell blocks and an immigration court,
mostly. There is nothing historically notable. It opened its
doors in 1994 to house immigration prisoners and hasn’t
stopped.4 There are few people available to notice its
unremarkability. Like the prison, the town of Eloy struggles
to lift itself out of the desert’s roughness. Off to the side of
Phoenix and Tucson, its 16,000 residents include the 1,400
people locked inside the Hanna Road prison, almost all of
whom would undoubtedly prefer not to be the town’s
imprisoned inhabitants.
Cut to the summer of 2014, when the number of people
coming into the hands of Border Patrol agents was at a
historical low and was continuing to drop steadily. In the
midst of that lull, the number of children and families
crossing the border jumped upward. So too did the reactions
from pundits and politicians. Obama officials responded
quickly and decisively with imprisonment as their chosen
policy approach. Facing the reality that DHS was poorly
equipped to house thousands of children and mothers, they
opened a hastily planned detention center in Artesia, New
Mexico, over three hours from El Paso to the southwest and
Albuquerque to the northwest. Counting a mere 12,000
residents, Artesia is also home to the Federal Law
Enforcement Training Centers (FLETC), a 1,300-acre complex
that turns recruits into Border Patrol agents, training them in
Spanish, constitutional law, and fence policing; according to
its website, the FLETC includes “four International Border
Fences replicating barriers used throughout various areas on
the border between the United States and Mexico.”5
Away from just about everything and everyone who
wasn’t already a federal agent or hoping to become one,
Artesia’s FLETC soon welcomed women and children
requesting asylum in the United States. Behind two layers of
barbed wire, they were housed inside corrugated metal
trailers. Some had cribs. Interview rooms were bare bones:
a few tables with uncomfortable chairs in a single room.
Everyone could hear everyone else. Children were supposed
to be occupied by a TV squeezed into a corner, while their
mothers told stories of rape, beatings, and treacherous
travels to the United States.
Thrown open with little time for planning, Artesia was a
humanitarian failure. The mother of a six-year-old, who was
detained there alongside her, recalls having too little food,
water that made people sick, and long waits to see doctors.
“The day-to-day conditions were horrible,” she wrote
anonymously in the New York Times. “It was no place for
humans, let alone for families with small children.”6 As if to
illustrate her point, a pair of medical experts hired by the
government reported that staff had failed to spot a severely
dehydrated infant even though the sixteen-month-old’s
mother had repeatedly taken the child to the prison’s clinic.
Despite the mother’s efforts, doctors who lacked pediatric
training sent her away, while the baby lost almost a third of
his body weight.7
One of the first advocates to arrive in Artesia was a
young attorney from Oregon, Julia Braker, who spent over
$1,000 just to get to Artesia. Meeting with clients in a small
space perversely called a “law library,” which didn’t include
a single book or a computer that could access email, she
nonetheless tried learning why migrants had come to the
United States, searching for something that might become
the basis of a legal claim to remain. All the while, she
remembers, ICE guards were present, able to listen in on
conversations about violence, rape, and gang intimidation.8
There wasn’t even a wall divider offering the superficial
privacy of office cubicles. “I don’t remember any guards
ever blatantly listening in on conversations, but the room
was small enough, and there were enough guards that they
could overhear,” she told me. Is it possible for people
traumatized by violence and ignored by government officials
—or worse—to confide their worst experiences under their
jailer’s watchful eyes? Perhaps, but it’s not likely.
Two years later, Artesia, always imagined as a temporary
facility, had been replaced by a couple of permanent family
prisons in Texas, but problems remained. An advisory
committee appointed by Obama’s secretary of homeland
security, Jeh Johnson, reported that the spaces available for
attorney–client meetings at the South Texas Family
Residential Center in Dilley and the Karnes County
Residential Center in Karnes were “entirely insufficient for
the number of detained individuals and the scope of legal
issues to be addressed by families in detention.” Rooms
were so poorly designed that they “may even be prejudicial
to ensuring effective communication and collaboration
between attorneys and detainees.”9 Mothers fleeing sexual
abuse were expected to describe their trauma in front of
their children, even when their children were born of rape.10
Children confined alone were expected to understand
posters tacked on walls and designed for adults informing
them that they had the right to meet with a lawyer.
These problems are so common across the immigration
prison estate that a report by two advocacy groups
described them as “endemic” to family detention.11 The
advocates meant to convey that these problems don’t go
away. Despite critique after critique, the same problems
appear in one facility or another year after year. Indeed, the
report’s title echoes its criticism: “Locking Up Family Values,
Again.” The advocates are only partly correct. It is true that
these problems don’t go away. But in describing the
problems as endemic to family detention centers, they
suggest that the problems are separate from the facilities.
The distinction between the problem of horrid conditions
and the prisons themselves hints that reform is possible, if
only people would start caring enough to do something
about it.
Dora Schriro’s description in her official report as a highlevel DHS official was more accurate. ICE’s detention system
is designed to manage, control, stigmatize, and punish—all
the goals of facilities “built … as jails and prisons to confine
pre-trial and sentenced felons.”12
Manhattan’s Varick Street, Eloy’s Hanna Road, and New
Mexico’s Artesia are evidence of just how different
immigration prisons can be. There are county jails that
sometimes are empty of people and government-owned
facilities that house thousands. Some beds are tucked into
urban neighborhoods; others are hidden along rural
highways. Despite their vastly different appearances, they
are joined by one central purpose: each of these facilities—
and hundreds more—is prepared to imprison people who the
government says violated immigration law.
Making sense of immigration imprisonment today requires
understanding its sheer size. There is a lot to talk about,
beginning with ICE, a division of the Department of
Homeland Security, which runs the civil immigration
detention system. Created in 2003 out of the Immigration
and Naturalization Service, ICE has a $7.5 billion budget and
twenty thousand law enforcement officers at its disposal.
Most of that money—$4.2 billion in 2019—goes to its
Enforcement and Removal Operations unit. When most
people think of ICE, they’re thinking of ERO. These are the
SWAT team–style forces that bang on doors, demanding
entry. In any given year, ICE detains somewhere in the
vicinity of 400,000 people waiting to learn whether they will
be allowed to remain in the United States.
Meanwhile, the federal criminal justice system also
busies itself imprisoning migrants. Despite the frequent
attention that the war on drugs receives for boosting the
nation’s prison population, the rising number of immigrant
prisoners usually escapes notice. In the last years of the
Obama administration, just shy of 100,000 people charged
with a federal immigration crime were booked into the
custody of the U.S. Marshals Service (USMS). They spent
two to three months in jail simply waiting for their criminal
case to be processed. In 2013, for example, marshals jailed
97,982 immigration-crime suspects. Every one of these
people was charged with nothing worse than an immigration
crime—usually entering the United States without the
federal government’s permission. In contrast, that same
year the USMS took into custody 28,323 federal drug-crime
defendants. People suspected of having committed a federal
weapons crime trailed behind at 8,129, and those suspected
of a violent offense at 4,511. To find a year in which
immigration-crime prosecutions did not lead the most
people into federal custody, we must go back to 2003, when
immigration prosecutions came second only to drug
prosecutions. Since then, it has skyrocketed, while
everything else has flat-lined. The split is now so stark that
it is hard to imagine it losing its top spot.
Just about everyone charged with a federal immigration
crime is eventually convicted, and when that happens,
migrants are usually sentenced to prison. Sometimes a
judge gives them time served, a sentence that accounts for
the nonviolent nature of illegal entry and reentry. Other
times, they are sent to a federal penitentiary. Though they
tend to receive shorter prison terms than people convicted
of federal crimes overall, they are slightly more likely to be
sentenced to prison time. On a given night, roughly 10
percent of the Bureau of Prisons population has been
convicted of an immigration crime—something like 20,000
people per night.13
Like the federal government, many states use their
incarceration power to target migrants for nothing more
than their immigration status. Arizona infamously tapped its
criminal justice system to raise the stakes of immigrationlaw violations when Governor Jan Brewer signed into law
Senate Bill 1070 in 2010. Though the Supreme Court found
major portions of that bill unconstitutional, it left intact the
law’s centerpiece: the “show me your papers” provision
authorizing police officers to ask people about their
immigration status. A wrong answer could open the doors
into the immigration prison pipeline. S.B. 1070 certainly
stands as Arizona’s most publicized effort to penalize
immigration-law violations, but it was not the first time that
the state did so. Since the early 2000s, the state has
repeatedly attempted to incarcerate migrants. In 2006,
voters amended the state constitution to bar judges from
releasing migrants suspected of certain crimes if police
thought they had violated federal immigration law.
Arizona is most prominent among the states turning to
their criminal justice systems to target immigration-law
violations, but it’s far from alone. S.B. 1070 spurred a series
of copycat laws in Alabama, Georgia, and elsewhere.
Missouri limits bail options, effectively jailing migrants,
when United States citizens facing the same charges would
be free. In Oklahoma, Florida, and Texas, it’s a crime to help
unauthorized migrants avoid immigration officers. In the
spring of 2017, as the new Trump administration ratcheted
up the rhetoric surrounding immigration, legislators in
several states followed suit. In Colorado, a junior state
senator hoped to force sheriffs’ departments to lock up
migrants anytime ICE requested it—even if that meant
clashing with the Fourth Amendment. Though that proposal
died in a Democratic-controlled committee, legislators in
other states were more successful. In Texas, the state
senate approved a bill penalizing cities that release people
against whom ICE has issued an immigration detainer.
Immigration prisons are filled with an eclectic mix of
inmates: teenagers fleeing forced conscription into gangs,
mothers escaping abusive husbands with their children in
tow, long-term permanent residents picked up because of a
conviction, and unauthorized migrants who, for one reason
or another, found themselves on the radar of a police officer
whose department works hand-in-hand with ICE. Twentyeight-year-old Selene Saavedra Roman, for instance, was a
long-time U.S. resident with roots as deep as her years
permitted, but her legal status was clouded. In the storied
world of Texas football, no rivalry has higher stakes than
matchups between the University of Texas and Texas A&M.
Saavedra Roman had clearly chosen her side. She was an
Aggie married to an Aggie. Within a few years of graduating
from A&M, she was flying high above Texas as a flight
attendant for Mesa Airlines, a small company that runs
flights for bigger fleets. By that time, she had patched over
decades of living in the United States without authorization
by taking advantage of Deferred Action for Childhood
Arrivals (DACA), President Obama’s highly controversial
policy of pushing to the bottom of the government’s
priorities the deportation of hundreds of thousands of
unauthorized migrants brought to the United States as
children. Like other DACA beneficiaries, Saavedra Roman
had a work permit. There was nothing out of order with her
airline job. After a lifetime of being unable to travel, this
dreamer, as unauthorized migrant youth are often called,
had accomplished her dream.
Little did she know that a combination of governmental
mean-spiritedness and employer incompetence would put
her behind bars during the winter of 2019. Scheduled for a
flight to Mexico, Saavedra Roman reminded her employer of
her DACA status, but the company told her that she had
nothing to worry about and that her return to the United
States would be as seamless as everyone else’s. But under
Trump, targets had been set on DACA by the right, and ICE
had started picking up people with DACA status as well as
people who had applied for DACA, sending them into its
prison network. In February 2019, Saavedra Roman would
follow them there. When her flight landed, Customs and
Border Protection officials at Houston’s airport declared her
an excluded Peruvian national. They probably would have
deported her immediately except for her DACA status, but
instead they sent her to an immigration prison in nearby
Conroe. “I called, I texted, I screamed to the sky,” her
husband, David Watkins, said of the moment he learned she
had been jailed. As a U.S. citizen, David had asked the
federal government to issue his wife a green card. But the
slog through the immigration process is slow, and by those
pivotal days in early 2019, no answer had arrived except for
the stark reality of the ICE prison. In Conroe, the young
couple could see each other weekly—always divided by a
thick glass window. It would take a public uproar and six
weeks before she was released.14
Saavedra Roman and her husband went through an
ordeal, but at least they were adults with years of living in
the United States. In contrast, take a woman known in
public court records simply as E.G.S., who was a newcomer
to the United States. Originally from El Salvador, the thirtyfive-year-old arrived in Texas after a weeks-long trek, fleeing
from members of one of the world’s most notorious gangs,
MS-13. She had been raped on multiple occasions, and gang
members had threatened to kill her. Along with her twelveyear-old daughter, E.G.S. sought asylum in the United States
the only way possible under United States law—by coming
to the United States in person. Anyone “who is physically
present in the United States … irrespective of such alien’s
status, may apply for asylum,” federal law provides.15 Both
violated immigration law in order to comply with asylum
law. For this, mother and daughter were taken to the Karnes
County Residential Center, a five-hundred-bed facility in
Central Texas, one of three facilities dedicated to holding
families. There, E.G.S. claimed in court records, her
daughter was subjected to sexual harassment and assault
by other detainees.16
Had the twelve-year-old arrived alone, she would have
been handed over to the Office of Refugee Resettlement
(ORR), a little-known corner of the Department of Health
and Human Services that contracts almost exclusively with
nonprofits to run “shelters” with electronic locks on the
exterior doors and tall fencing along a perimeter that is
constantly watched through surveillance cameras. In 2016,
ORR housed about 60,000 kids. The number went down to
41,000 the following year and back up to 49,000 a year
later, but this is still a dramatic increase from the 7,200 kids
in ORR custody a decade earlier, in 2008.17
In the summer of
2018, ORR’s facilities, all of which are owned and operated
by contractors, were thrust into the media spotlight when a
Trump administration policy declared that it was best to
separate families: detain and deport parents, while kids get
shuttled into one of a hundred ORR facilities. Its largest
partner, an Austin-based nonprofit named Southwest Key,
runs about two dozen sites. In Brownsville, Texas, it uses an
old Walmart. In Tucson, a converted motel.
Other migrants are imprisoned so that they can be
punished. In the federal system, everyone convicted of a
crime and sentenced to prison is handed over to the
custody of the Bureau of Prisons (BOP). Migrants are no
different. In the summer of 2019, the BOP operated ten
“criminal alien requirement” prisons, which were exclusively
reserved for migrants. Like in the rest of the federal prison
system, there are a lot of drug offenders in these facilities,
but about a third of inmates are there solely because they
violated immigration law.
Instead of waiting to hear what
an immigration judge or asylum officer has decided about
their ability to stay in the United States, immigration
offenders under the BOP’s oversight have already been
prosecuted and convicted of a federal crime. Almost always
they plead guilty to entering the United States without
authorization or doing that after a previous deportation.
Whether migrants are jailed as part of an immigration
court case or as part of a criminal prosecution, sometimes
the same facility is used. All that changes is the federal
agency that pays the bills. The Cibola County Correctional
Center in New Mexico went from housing convicted
immigration offenders for the BOP to housing people ICE
was trying to deport. Willacy County in Texas went in the
opposite direction: from ICE to BOP prisoners.
In Cibola County and Willacy County, the same activity is
being targeted, the same people are being locked up.
Sometimes justified by civil legal powers given to ICE or U.S.
Marshals, and at other times by criminal authority wielded
by BOP, to the migrants who are under constant
surveillance and whose liberty has been denied there is little
difference. As an official government report put it in 2009,
“Immigration Detention and Criminal Incarceration
detainees tend to be seen by the public as comparable, and
both confined populations are typically managed in similar
ways.”19 This similarity is not lost on detained migrants. In
the words of former ICE detainee Malik Ndaula, “They call
immigration detention civil confinement, but prison is prison
no matter what label you use, and prison breaks people’s
souls, hearts, and even minds.”20
Labels do matter. Rhetoric is important. Just like it
matters that Presidents Obama and Trump claimed their
immigration policing tactics made the country safer, what
we call the sites where migrants are confined is similarly
consequential. DHS takes pains to say they are “detention
centers,” “servicing processing centers,” or “residential
centers”—anything but jails or prisons. This would be fine if
there were a meaningful difference between an ICE lockup
and the typical county jail or state prison. Only there isn’t.
Of the hundreds of facilities that ICE uses to confine
migrants, many are county jails, without even the pretense
of being anything other than penal institutions that house
people charged with or convicted of crimes. They are owned
by the county, operated by the sheriff, and built to keep
inside the people arrested every day in cities throughout the
United States for a vast array of crimes—anything from
murder to underage drinking. ICE essentially rents beds
from the county sheriff.
When it doesn’t send migrants to county jails, it sends
them to other locations that look a lot like county jails. Entry
and exit are controlled, movements inside are tightly
regulated, the perimeter is laced with barbed wire, and
security governs daily life. The same holds true of facilities
used by the U.S. Marshals and Bureau of Prisons. Sometimes
even the superficial change of switching federal government
patron is too much. At the Otay Mesa Detention Center
south of San Diego, ICE and U.S. Marshals simply house
their immigration prisoners in the same prison at the same
time. All that’s different is the color of their uniforms. What
is called a prison or correctional institution when under
contract with the USMS or BOP isn’t magically transformed
when ICE chooses the uniform color.
Writing on behalf of the majority of the Supreme Court,
Justice Abe Fortas took a similar approach toward
confinement facilities for young people. “A boy is charged
with misconduct,” he explained. “The boy is committed to
an institution where he may be restrained of liberty for
years. It is of no constitutional consequence—and of limited
practical meaning—that the institution to which he is
committed is called an Industrial School. The fact of the
matter is that, however euphemistic the title, a ‘receiving
home’ or an ‘industrial school’ for juveniles is an institution
of confinement in which the child is incarcerated for a
greater or lesser time. His world becomes ‘a building with
whitewashed walls, regimented routine and institutional
hours.’ Instead of mother and father and sisters and
brothers and friends and classmates, his world is peopled by
guards, custodians, state employees, and ‘delinquents’
confined with him for anything from waywardness to rape
and homicide.”21
Justice Fortas’s point was quite simple: to the youth
inside, it felt like a prison no matter what the sign above the
door said. Likewise, to the people inside the confinement
facilities used for those who have violated immigration law,
they feel like prisons, whether operated by ICE, USMS, or
BOP. Inmates are grouped into color-coded categories based
on security classifications that dictate who can go where
and when. Oranges can’t be mixed with blues. Reds
shouldn’t be left unattended. In staff-strapped facilities, that
sometimes means prisoners are stuck inside cell blocks
when they’re scheduled for court or the other way around:
once a hearing is over, they are forced to sit in a courtroom
waiting cell because facility rules say they can’t be trusted
to walk back to their dormitories. “It’s pretty much like a
regular jail,” Army veteran Gerardo “Jerry” Armijo said of the
Port Isabel Detention Center after his stint there.
No matter the words plastered onto a sign outside, or who
writes the checks that pay the staff, prisons have the same
effect, with enormous costs. The human impact of
incarceration is well-known. Detainees deal with the
psychological toll of confinement, sometimes compounding
the trauma that pushed them to leave the violence they
have fled. Spouses struggle to keep families afloat,
sometimes falling into homelessness. Local governments
and charitable organizations frequently step into the fray.
States provide housing assistance to family members, cities
pay more for in-school support services, and charities offer
food. One study found that 16 percent of migrants detained
by ICE in Southern California who had families they
supported financially reported problems paying rent or a
mortgage prior to detention. After being taken into ICE’s
custody, that number jumped to 64 percent. Over one-third
said their families couldn’t pay for food, and four out of ten
reported family difficulty paying for necessary medical
ICE’s enforcement tactics only augment the heavy
weight of family separation. Instead of allowing parents to
prepare children emotionally—or at least soften the blow—
for a parent’s forced removal, ICE frequently swoops into a
family’s life like a SWAT team. “In the pre-dawn hours of
March 6, 2007, federal immigration officers pulled up in
white vans in front of three large apartment buildings.
Suddenly, without warning, agents identifying themselves
as police stormed the building and began pounding on
doors,” elementary school principal Kathryn Gibney told
Congress about the day in March 2007 when agents
stretched through her students’ Marin County, California,
neighborhood. In a matter of minutes, children go from
normalcy to living without a parent. “They handcuffed
parents in front of their children and took them away,
threatening that they would soon be back for others,” she
It’s as if a parent simply disappeared. Wrapping
their minds around a parent’s sudden departure proves too
much for some. Depression frequently follows, with poor
school performance close behind. Sometimes that morphs
into destructive behaviors like self-cutting or drug abuse.24
Under strains like this, it’s no wonder that families suffer.
As one study of 132 migrants in New England found, the
more vulnerable parents are to detention and deportation,
the more their children feel the impact.25 Children often end
up struggling in school, responding with misbehavior and
apathy toward classwork. That some manage to piece
together a semblance of normalcy is mind-boggling. When
the nightmare of family separation happens, migrants tap
the power of what anthropologists call “familismo.” Through
the presumption that relatives and close friends form part of
an extended family network, migrants can get financial and
emotional support. One group of researchers studying mass
arrests in Colorado, Massachusetts, and Nebraska found
that “familismo was an effective response to the emergency
needs of children,” but even that came under strain after a
few days or weeks.26
Cecilia Equihua knows that feeling. Her father’s
imprisonment came with a heavy burden on her. When she
visited him in Florence, Arizona, near Eloy, she felt that she
was also in prison. “I had never had the experience of
seeing my dad behind a glass pane and having to talk to
him through a phone,” she told me. When he wound up in
Cibola County, New Mexico, after an illegal reentry
conviction months later, she decided to stick to letters.
We don’t know precisely how many immigration
prisoners have relatives in the United States, but it’s a large
number. From 1998 to 2007, the federal government
deported 108,439 parents of U.S. citizen children, the DHS
inspector general reported. On average, they had lived in
the United States for ten years.27
In one Arizona immigration
prison, 86 percent of women reported having at least one
U.S. citizen child, most of whom were under ten years old.28
All of these kids are entitled to remain in the United States.
Often, that’s exactly what happens, even as a parent
becomes a distant memory or little more than a face on a
phone screen.
Criticism of immigration prisons is widespread but limited in
scope. Journalists regularly disclose the prison system’s
unsavory truths. I often talk to reporters who have spent
countless tedious hours sitting inside courtrooms and many
more trying to get inside prisons. They talk to prisoners and
family members. They tap the power of the Freedom of
Information Act, the premier government transparency law
in the United States. Likewise, advocates consistently lodge
fiery rhetoric and litigation against prisons. They hold press
conferences and convince superstars to hold concerts
outside prison walls. They lobby elected officials. For their
part, prisoners push back. They organize themselves, go on
hunger strikes, and, at times, rebel forcefully.
Yet the immigration prison archipelago continues to
thrive. It appears to be on autopilot. Its inevitability has
been driven so firmly into conversations about a functioning
immigration-law regime that even most migrants’ advocates
tend to assume that the United States has to lock up
someone. The only real questions are who, how many, and
under what conditions. Without doubt, those are important
considerations. But they are also distractions. Rhetorical
fights over what is best to use as a marker of undesirability
misses the point that everything about drawing lines around
some people—figuratively and literally—is rife with
complications and unintended consequences. Fitting some
people into cages is also unnecessary to ensure a
functioning immigration-law system. As a policy,
immigration imprisonment is a failure. As a legal principle, it
is a sign of virtually unbridled executive power and an
example of law’s willingness to push migrants into a
marginal, by-their-fingernails hold on to recognition inside
courtrooms. As a measure of our collective morality, it’s a
humanitarian catastrophe. But as a sharp-edged political
tool, it is a remarkably effective means of dividing
workplaces, friendships, families, and communities.
David Rodriguez’s star looked to be rising quickly. A
celebrated chef at a trendy Houston cafe, Rodriguez’s days
mostly revolved around feeding what a review in a local
newspaper described as “the cool kids” at “downtown’s new
‘it’ spot.”1 Born in Mexico, Rodriguez came to the United
States in 1997 when he was thirteen years old. Another
thirteen years passed and, in 2010, he and his girlfriend,
Vanessa, were heading home when two drunk men
threatened her. Rodriguez pulled a bat out of the car and
took a swing at the men, hitting them, before driving away.
He later pled guilty to misdemeanor assault and moved on
with his life and work. Years passed, and in 2015 Vanessa
became his wife, and they decided on Belize for their
honeymoon. They had no way of knowing that their days of
paradise would give way to a family nightmare.
Rodriguez’s professional success came to a screeching
halt when he and Vanessa stepped off the airplane in Miami.
Reviewing Rodriguez’s background, an immigration officer
at the airport concluded he was deportable. That five-yearold conviction, the Customs and Border Protection official
thought, qualified as a crime involving moral turpitude,
enough to land Rodriguez in prison. Those four words
—“crime involving moral turpitude”—have been part of
immigration law since 1891, and the phrase’s meaning
remains vague, ambiguous, and open to interpretation to
this day. What was inherently base a century ago might not
be today.
Even today, federal law tells government officials to use
“the moral standards generally prevailing in the United
States.”2 Yet officials are given broad discretion, especially
in fast-acting situations like the airport screenings, where
Rodriguez came under scrutiny. As far as the law goes about
assault, simple assault isn’t a crime involving moral
turpitude, but other types of assault are. Because there is so
little consistency about what legally constitutes moral
turpitude, it shouldn’t come as a surprise that a border
official thought Rodriguez’s crime fit the bill. How is
someone who isn’t a lawyer and receives limited training on
the inner workings of immigration law supposed to track the
meaning of this term? The words of one congressman, said
a century ago as he tried to get the phrase out of
immigration law, ring true today: “No one can really say
what is meant by saying a crime involving moral turpitude.”3
It might be hard to know what qualifies as a crime
involving moral turpitude, but it matters. If the border
official were correct, Rodriguez could be kicked out of the
country. If wrong, he could go back to his life of creating
critically acclaimed meals for Houston’s trendsetters. But for
the long-time resident with deep ties to the booming Texas
metropolis, the possibility of not getting to live in the United
States wasn’t the only tough reality. The airport immigration
officer’s accusation of debased conduct meant he would
have to fight the government’s immigration charges from
inside prison. That is exactly what happened. From inside a
private immigration prison in Houston, Rodriguez watched
Thanksgiving, Christmas, and New Year’s Day pass. “You’re
nowhere, and you’re somewhere,” he mused when I spoke
with him inside his current business success: a “creative
lifestyle destination” selling shoes, books, art, and espresso.
He shared that limbo space in detention with a rotating
bunch of over three dozen men. After seventy-eight days, he
was released when an immigration judge decided that the
conviction did not make him removable.4
No one would claim that David Rodriguez is perfect, but
looking only at his actions, disconnected from everything
else, ignores key details. The men he hit threatened his
future wife. Removed from the encounter that night, it’s
easy to say that Rodriguez was in the wrong. Even if that’s
correct, the rest of his life suggests that this moment of
violence was the exception. Far more common is the coolheaded Rodriguez that prevails in the high-pace, heated
environment of restaurant kitchens.
If we consider Rodriguez’s life as a whole, it becomes
easier to excuse his actions. Indeed, when a prosecutor got
involved in his criminal case years before he wound up in
ICE’s clutch, something like that happened. He was first
charged with a felony. After the prosecutor learned more
about what happened, he agreed that a felony charge was
too serious. Instead, Rodriguez and the prosecutor agreed to
the reduced misdemeanor offense he pled guilty to. Had the
prosecutor focused only on Rodriguez’s actions, he would
have just focused on the brutality of taking a baseball bat to
another person. Criminal law is more sophisticated than
that. It accounts for the basic fact that actions happen in a
particular context. On that night when Rodriguez and
Vanessa were making their way home, only to be accosted,
context mattered.
In the United States, exceptionalism is baked into our
collective mythology. We think of ourselves as special
people who have created a uniquely extraordinary country.
The story of the nation’s birth does not involve Roman gods
or Greek epics, but it does involve an equally preposterous
myth of selfless, hard-working, Godfearing intrepid spirits.
The colonial “city upon a hill,” as John Winthrop put it in
1630, has come to symbolize the settler community’s desire
to stand watch over the ostensibly barren wilderness where
nature’s bounty waited to be exploited and barbarian tribes
had to be extinguished. Winthrop’s sermon actually gave his
followers some leeway, but the part that has become
ingrained in national culture isn’t so forgiving. On the
contrary, the colonial myth of exceptionalism appears
centuries later in the work of people who shared little in
common with Winthrop’s puritanism. Writing in 1859, the
abolitionist and author of Uncle Tom’s Cabin, Harriet
Beecher Stowe, wrote that “in no other country were the
soul and the spiritual life ever such intense realities” as in
New England.5
Four centuries after Winthrop’s speech off the coast of
what would become New England, grandiosity governs our
political culture. Occasionally, politicians invoke Winthrop
explicitly, like when Ronald Reagan quoted the “city upon a
hill” line the night before election day in 1980.6 Two terms
later, he turned to Winthrop again, explaining that, when he
envisioned Winthrop’s fairytale city, “in my mind it was a
tall, proud city built on rocks stronger than oceans,
windswept, God-blessed, and teeming with people of all
kinds living in harmony and peace; a city with free ports
that hummed with commerce and creativity. And if there
had to be city walls, the walls had doors and the doors were
open to anyone with the will and the heart to get here.”7
Most of the time, though, U.S. exceptionalism manifests
itself in more subtle forms. In a memorable speech marking
fifty years since police violently beat civil rights advocates
in Selma, Alabama, Barack Obama described the “American
instinct” as “the idea held by generations of citizens who
believed that America is a constant work in progress; who
believed that loving this country requires more than singing
its praises or avoiding uncomfortable truths. It requires the
occasional disruption, the willingness to speak out for what
is right, to shake up the status quo. That’s America. That’s
what makes us unique.”8
So fully immersed in the United States’ psyche that
presidents as starkly different as Reagan and Obama
incorporate the idea into major speeches, exceptionalism
has also become ingrained in the law that determines who is
fit for membership in the political community: immigration
law. Like a bouncer at a trendy nightclub, immigration law
demands superficial extraordinariness. For most of the
nation’s history, voluntarily migrating to the United States
meant being white. Explicit racial restrictions are now a
thing of the past, but the promise that the United States
welcomes “anyone with the will and the heart to get here” is
flat out false.
Migrants are expected to live out the exceptionalism that
U.S. citizens imagine in themselves. Since 1965,
immigration law has been structured around two narrow
guiding principles: people can come to the United States to
reunite with certain family members already here or to
contribute to industries in need of high-skill workers. As a
result, successfully navigating the immigration process
generally requires having the right family ties or the right
job. If you do not, you are pretty much assured you won’t be
granted permission to take up residence in the United
States. Obtaining either of these requires some effort and a
lot of luck. Having a relative in the United States who can
request that you join them generally turns on who your
parents are or who you marry. Getting the right job depends
on going to the right schools, pursuing the right degree
plan, navigating the right job prospects in just the right way
—and making sure that there are not too many people in
the United States doing that too. Most of these hinge on
what opportunities parents provide their children—a fact
completely beyond any individual’s control.
It also hinges on wealth. The United States is notorious
among wealthy nations for stomaching enormous inequality.
Executives earn 312 times as much as their employees.9
Almost one out of five children lives in poverty.
10 Walk
through any major city and the homeless population is a
reminder that many people do not have a roof over their
heads. Yet immigration law expects much more. People
can’t get visas if they might become a “public charge,” a
hard-to-pin metric that requires a family-member sponsor to
prove that they can feed an extra mouth and stay above
125 percent of the federal poverty level. In 2018, the Trump
administration even floated a proposal to deny visas to
people who had received a government subsidy to buy
prescription medication insurance through Medicare.
Once they have made it to the United States, migrants
are again held to a higher standard than U.S. citizens are.
Migrants caught up in just about any criminal activity are in
peril. From the unauthorized migrant caught driving without
a license to the permanent resident convicted of possessing
a single joint of marijuana, federal law permits government
officials to detain and potentially remove people who flout a
wide variety of run-of-the-mill criminal laws. Drop below the
125 percent threshold and you violate the terms of your
stay. A woman who obtains a green card because she
married a U.S. citizen who then turned out to abuse her
risks her legal status if they divorce. There is a legal route
around this, but that requires a lawyer. Any of these people
can be imprisoned while they try to resolve their
immigration predicament.
In Colorado, where I live a few blocks from the closest
marijuana dispensary, a U.S. citizen can buy twenty-eight
grams of marijuana daily under a neon green cross, but for
possessing anything more than thirty grams a noncitizen
can wind up in ICE custody.
11 The most charitable avenue for
avoiding the harsh confinement and removal of today’s
immigration policing practices—a device called cancellation
of removal—is off-limits to people convicted of any of the
twenty-one types of crimes called aggravated felonies.
Pursuing aggravated felony claims, sometimes the
government goes too far, even for the courts. Obama
administration lawyers took a case to the Supreme Court
involving a man caught with one Xanax pill. He was
convicted of simple possession, a misdemeanor, and got ten
days in a Texas jail. To the federal government, this was a
drug-trafficking crime that left ICE no choice but to lock up
José Ángel Carachuri-Rosendo while an immigration judge
decided whether he would be deported. The Court
A few years later, Obama administration lawyers were
back at the Supreme Court arguing that a sock Moones
Mellouli was wearing was a form of drug paraphernalia.
Inside it, Mr. Mellouli had stuffed four tablets of Adderall, the
common attention deficit hyperactivity disorder medication,
but Justice Department lawyers did not focus on the
medication. Instead, they claimed the sock was enough to
win the aggravated felon label and, with it, warrant forced
confinement and removal. Again, the Supreme Court
disagreed, explaining that federal law does not criminalize
“ready-to-wear items like socks,” so it can’t form the basis
of immigration imprisonment and removal.13
It hasn’t always been this way. For most of U.S. history,
second chances were built into immigration law. Most of the
time, crime was irrelevant to a person’s ability to make a life
here. Neither imprisonment nor removal were part of the
calculations most migrants made. In most instances, federal
law did not authorize imprisonment specifically for migrants.
People who were suspected or convicted of a crime were
locked up on the same terms whether they were U.S.
citizens or not. Starting in the 1980s, sea changes swept
immigration law. “While once there was only a narrow class
of deportable offenses and judges wielded broad
discretionary authority to prevent deportation,” the
Supreme Court wrote in a landmark 2010 decision, Padilla v.
Kentucky, “immigration reforms over time have expanded
the class of deportable offenses and limited the authority of
judges to alleviate the harsh consequences of deportation.
The ‘drastic measure’ of deportation or removal is now
virtually inevitable for a vast number of noncitizens
convicted of crimes.”14
Even the language that immigration law uses to describe
migrants evokes exceptionalism. To immigration lawyers
and judges, there are no migrants. There are only citizens
and “aliens,” as if Hollywood scriptwriters took over for
Congress. Everyone who doesn’t fall into one category falls
into the other. An alien, the Immigration and Nationality Act
says, is “any person not a citizen or national of the United
States.” On the big screen, aliens are the unknown threat
that arrives from a distant planet possessed of special
capacities and advanced technologies. The language of
immigration law conjures up a similar threat. Central
Americans walking to the United States with backpacks and
children in tow are “an invasion … and our Military is
waiting,” President Trump declared in late October 2018.15
With an eerie similarity, Bill Pullman, playing president in
the 1996 alien-invasion blockbuster Independence Day,
rallied resistance forces “fighting for our freedom … from
annihilation.” Like their counterparts from outer space,
human aliens from other countries are unknown, potentially
dangerous, and superhuman.
Nonetheless, as if in response to the high demands
placed on them, migrants tend to rise to the challenge. They
are an exceptional lot. Migrants commit less crime than do
people born in the United States. They are better educated.
They are more religious. Through unions, faith groups, and
community organizations, they involve themselves in civic
life more than U.S. citizens do. But within this extraordinary
bunch, there are plenty of normal, imperfect people. Some
do commit crimes, from the most trivial to the worst acts
imaginable. Some never had a chance to go to school;
others didn’t care to keep going. Plenty stay home on
Sundays and live in relative solitude. Like U.S. citizens,
migrants are a mixed bag. My mother finished the third
grade but goes to church six or seven days a week. I am a
lawyer and law professor, but I make it to church once every
six or seven months (usually when visiting my mom).
Regardless of their immigration status, humans are
complicated, inherently imperfect, and often contradictory
beasts. We don’t fit neatly into boxes marked “good” or
Regrettably, much of the rhetoric that dominates political
debate on immigration law misses this basic point. In a
prime-time immigration speech on November 20, 2014,
President Obama explained that his administration’s
immigration enforcement priorities target “felons, not
families. Criminals, not children. Gang members, not a mom
who’s working hard to provide for her kids.” President
Obama’s exhortation is as good an example as President
Trump’s trite comment about targeting “bad hombres.” Both
simplify complex human beings. Felons are part of families,
just like one person’s bad hombre might be another’s father.
“It hurts that he was trying to be a dad and he can’t,”
Cecilia Equihua said about her father, locked up for
returning to the United States to reunite with his kids. The
easy sound bites make for politically useful talking points,
but they are a lousy basis for public policy.
The shifting sands of the political debate about which
migrants deserve to live freely in the United States and
which don’t expose the pernicious edge of sorting the good
from the bad. Listen to most elected officials talk about
immigration, and one commonality quickly becomes
obvious. Everyone, it seems, wants to lock up and deport
criminals. President Clinton signed laws that made it easier
to land in an immigration prison and harder to get out. His
successor, President Bush, inaugurated the era of hardline
criminal prosecution of immigration-law violators. President
Obama and his top immigration officials repeatedly claimed
to focus their resources on so-called criminal aliens, and
oversaw the largest immigration prison population in history
until then. The Trump administration is no different. In his
first week as president, Donald Trump signed an executive
order declaring “aliens who engage in criminal conduct in
the United States” to be a particularly “significant threat to
national security and public safety.”
Despite the consistent bipartisanship of tarring migrants
who have committed a crime, it’s impossible to sort the
good from the bad consistently. Obama’s “felons, not
families” remark categorized people into two boxes: family
members on the one hand and criminals on the other. Trump
uses two different categories: law-abiding citizens, almost
always depicted as white, and law-breaking migrants,
almost exclusively not white. Both categories are
convenient rhetorical ploys that make for good sound bites,
but neither can be defended logically. The criminals that
Obama derided are also family members. Families include
criminals, and criminals have families. Lots of crime, in fact,
is committed against family members.
Politicians and pundits inclined to dislike migrants have a
sharp eye for their worst mistakes. When Iowa police pinned
blame for the murder of white college student Mollie Tibbets
on Cristhian Bahena Rivera, an unauthorized migrant from
Mexico, Trump quickly stood in front of a camera and
complained, “We have tremendous crime trying to come
through the border.”16
In Trump’s view, crimes, not people,
cross the border. By contrast, President Obama was the
opposite of Trump’s crudeness and callousness. Still, the
Obama administration heavily publicized its policy of
targeting migrants with criminal histories while going easy
on people who had avoided blemishes. Even the DACA
program was off-limits to young people who had been
convicted of some crimes.
Trump’s complaint is certainly cruder than the Obama
administration’s policy, but both examples fit into a broader
bipartisan pattern. In political conversations, migrants are
expected to be innocent. If they are not, they stop being in
the good graces of policymakers—and the laws they make.
“We love our victims innocent,” writes the philosopher
Mladen Dolar. “We empathize with them as long as they
appear to be innocent, but the moment they display some
trait that is not entirely amiable … the sympathy is cut
short.”17 For U.S. citizens, blemishes are to be expected
because humans are imperfect creatures. We mess up.
President Trump expressed support for his campaign
chairman Paul Manafort, who admitted to lying to the FBI.
He pardoned his supporter Joe Arpaio, who was convicted of
disobeying court orders. But he regularly harps on about the
dangers migrants pose. In regards to the aliens who migrate
to the United States, blemishes are red flags of which
citizens should be wary.
In the United States of the late twentieth and early
twenty-first centuries, to be wary is to be worried, and
prisons are considered a suitable tactic to deal with our
fears. Officially, the United States uses immigration prisons
mostly to avoid crime and ensure that migrants appear for
court dates. Neither justification stands up to close scrutiny.
Migrants commit relatively little crime. Locking up hundreds
of thousands of men, women, and children because
someone, somewhere, at some time, might do something is
ludicrous. Mostly, migrants end up behind bars because of
overblown fears that they are violent predators on the loose.
In the dispassionate description of legal scholar Emily Ryo,
“concerns about immigrant criminality predominate
immigration bond hearings,” legal proceedings in which a
migrant can ask an immigration judge for release from
confinement.18 Comments by Presidents Obama and Trump
illustrate Ryo’s point. In a 2012 debate against Republican
presidential contender Mitt Romney, President Obama called
some migrants “gangbangers.”19 President Trump harps on
about gory beheadings. Within days of entering the White
House, President Trump prioritized going after any migrant
charged with a crime, even if no conviction resulted. A few
months later, his attorney general, Jeff Sessions, claimed
that “criminal aliens … seek to overthrow our system of
lawful immigration.”20 Both administrations claim that they
are going after the worst of the worst but disagree about
where to draw that distinction.
Prisons are ingrained in the perception of a functioning
immigration-law system in part because they are imagined
as requirements of public safety. If the United States is to be
protected from internal and external threats, the federal
government must know who is inside the country and who is
asking to enter. A political spat that developed in the midst
of budget battles between the Obama White House and the
Republican-led House of Representatives in 2013 illustrates
just how deeply ingrained the assumption is that
immigration prisoners pose a risk. That year, ICE announced
that it would soon release several hundred detainees weekly
from a population of almost 34,000. Over a three-week
period, ICE released 2,228 people.21 Without any information
about whom ICE had in mind for release, the Speaker of the
House of Representatives at the time, John Boehner,
accused the agency of “letting criminals go free.” His
Republican colleague, the chair of the House Judiciary
Committee, Bob Goodlatte, added, “Irresponsible decisions
to release detained illegal immigrants unreasonably and
unnecessarily put the public at risk.”22 Like Boehner,
Goodlatte also didn’t claim to know anything about the
specific people on ICE’s release list. Nonetheless, both
immediately concluded that ICE’s actions endangered the
Considering government-held information about whom it
confines, Boehner’s and Goodlatte’s knee-jerk reactions are
unfounded. ICE’s prison population includes many people
who have never been convicted of a crime. Adalberto Díaz
Labrada came here from Cuba in search of asylum. For
lacking the government’s permission to arrive, he wound up
at the Port Isabel Detention Center, the sprawling South
Texas immigration prison tucked into picturesque brushland.
In Port Isabel, “I was a number for twenty-one days,” he told
me when we spoke inside the busy bakery in Salt Lake City
that he now runs. Appearances on the Food Network and a
National Pastry Chef of the Year Award from the American
Culinary Federation have made him into a croissant
celebrity—and with good reason. He is a baker and an artist.
The bakery is tucked neatly into a neighborhood full of
low-slung, working-class homes, where businesses,
customers, and employees go back-and-forth between
English and Spanish. From this fragrant outpost, Díaz
Labrada has embraced the political side of baking. To him,
the bakery isn’t just where people buy croissants; it’s a
space in which people from across his community can come
together over a common interest. It’s like he sees the pastry
shop the same way many people see a church, rather than
how the pastry-chef medals hanging along the shop walls
suggest: a lone baker, seemingly isolated from everyone
When news broke in 2018 that children were being taken
from their parents and shipped to immigration prisons, Díaz
Labrada was shaken to act. Fifteen hundred miles from Port
Isabel, he couldn’t rush to the scene, but he could bake.
Eighteen years after his own release from an immigration
prison, he organized a bake sale that brought in $15,000 in
donations to the Texas Civil Rights Project, the civil rights
group that first exposed the Trump administration’s family
separation policy. “This is my power,” he said. Not everyone
wants to hear his message, but that’s okay with him. “I was
afraid and worried when I was twenty-eight” and held at
Port Isabel, he said, before quickly adding, “but what would
my reaction be if I was ten?”
Jakelin Caal would have liked to have known, too. Born in
Guatemala in 2011, she was seven years old when she died
inside a Border Patrol holding facility in December 2018,
about forty-eight hours after entering the United States. The
cause of death appears to have been sepsis, a treatable
illness that sometimes hits people with vulnerable immune
systems when their bodies are trying to ward off an
infection. Anxious to turn the tables of blame, DHS
announced her death while warning of the dangers of
migrating to the United States. “Once again, we are begging
parents to not put themselves or their children at risk by
attempting to enter illegally,” DHS wrote on its Facebook
Less than three weeks later, Felipe Gómez-Alonzo made
it to Christmas Eve, but no further. Eight years old, he also
died in Border Patrol custody. His sister said that Felipe’s
dream was to study in the United States, then return to his
family in Guatemala. Instead, he returned in a miniature
coffin. “Because we’re poor, we have to pass through things
like this,” his mother told a reporter a few months later.
Even among people who do have a criminal record, many
have been convicted of nothing that could be said to
threaten public safety. Akio and Fusako Kawashima, for
example, are “aggravated felons” in immigration-law
parlance. They were both convicted of crimes that subjected
them to mandatory detention while they fought their
immigration cases and, after losing, as they awaited
deportation to their native Japan. Their crimes? Tax fraud.
Owners of Japanese restaurants in the Los Angeles area,
Akio Kawashima filed a false federal corporate tax return.
His wife, Fusako, helped. Both pled guilty and received a
sentence of a mere four months in jail.25 By the time of ICE’s
2013 announcement of a pending detention center release,
the Kawashimas had lost their legal challenges, even a
battle in the Supreme Court, so they were not among ICE’s
detainees. Had they been, their release couldn’t reasonably
have been said to endanger anyone. Indeed, losing meant
they were returned to Japan. Is Japan less safe than it was
while this couple, fast approaching sixty years old, was
running restaurants in California?
Boehner’s and Goodlatte’s reactions were extreme but
not unusual. When a man who’d done numerous stints
inside immigration prisons for removal proceedings and
immigration crime convictions was accused of killing a
young woman walking on a San Francisco pier with her
father, Republican congressman Steve King claimed that
“Kate [Steinle’s] beautiful life was taken from her … when
she was shot in the back by an illegal alien who had
previously been deported five times and was seeking refuge
in a so-called ‘sanctuary city.’”26 Kate’s Law, a bill Goodlatte
introduced with King’s co-sponsorship, made it through the
House before stalling in the Senate. The bill would have
massively expanded prison time for immigration crime
As a candidate, President Trump declared his support for
the law “in honor of the beautiful Kate Steinle who was
gunned down in SF by an illegal immigrant” and repeatedly
mentioned her by name.28 The following summer, with the
Republican Party’s nomination in hand, he said in his
acceptance speech at the Republican National Convention,
“Of all my travels in this country, nothing has affected me
more deeply than the time I have spent with the mothers
and fathers who have lost their children to violence spilling
across our border.… My opponent will never meet with
them, or share in their pain. Instead, my opponent wants
Sanctuary Cities. But where was sanctuary for Kate Steinle?
… Where was sanctuary for all the other Americans who
have been so brutally murdered, and who have suffered so
These examples aren’t limited to Republicans. None
other than liberal champion and long-time U.S. senator
Dianne Feinstein pointed the finger at the San Francisco
Sheriff’s Department. The influential Democrat put the
blame for Kate Steinle’s “tragic killing” by José Inés García
Zarate on San Francisco’s refusal to abide by an ICE
detainer request. According to a host of courts, the problem
is that keeping someone behind bars simply at ICE’s behest
violates the Fourth Amendment. “I strongly believe that an
undocumented individual, convicted of multiple felonies and
with a detainer request from ICE, should not have been
released,” Feinstein said in an official statement. In a letter
to San Francisco’s mayor, she added, “The tragic death of
Ms. Steinle could have been avoided if the Sheriff’s
Department had notified ICE prior to the release of Mr.
Sanchez, which would have allowed ICE to remove him from
the country,” referring to García Zarate by an alias used in
early reports. She urged the mayor to collaborate with ICE
by holding people at ICE’s request and joining an ICE
initiative to identify and arrest people jailed by the city.
Yet, despite being tarred by Trump, a jury found García
Zarate not guilty. It turns out the jury was not convinced
that he had set out to shoot Steinle. Instead, it appears that
he found the gun on the sidewalk and accidentally set it off.
No one knows who put it there, only that the gun had
previously been left unattended in a vehicle belonging to a
federal park ranger. Gun deaths are anything but unusual in
the United States. From Charleston to Pittsburgh, we can
point to real shots fired against people worshipping in the
closest thing we’ve ever had to actual sanctuaries—our
churches and synagogues. Painting García Zarate as a
deranged demon pretends that gun deaths are uncommon
and that Steinle’s death resulted from García Zarate’s
depravity rather than from her bad luck in a gun-saturated
For generations, public safety has been used as a
justification for immigration imprisonment. When Ellen
Knauff was trying to reunite with her World War II–veteran
husband in the United States, immigration authorities
confined her on Ellis Island. To immigration officials, her
presence in the United States “would be prejudicial to the
interests of the United States”—so much, in fact, that they
refused even to give her a hearing at which she might learn
the reason for her confinement and exclusion from the
country whose war aims she had supported in Europe. “As
all other aliens, petitioner had to stand the test of security,”
the Supreme Court explained while denying her claims.
“This she failed to meet.”31
In his strident dissent, Justice
Robert Jackson responded, “The plea that evidence of guilt
must be secret is abhorrent to free men, because it provides
a cloak for the malevolent, the misinformed, the
meddlesome, and the corrupt to play the role of informer
undetected and uncorrected.”32 Proving Jackson’s point,
years later Knauff won her freedom after an immigration
court concluded she had been held on nothing more than
Ironically, imprisonment is even justified on humanitarian
grounds. In the same year that the Supreme Court decided
Knauff’s case, immigration officials busied themselves
excluding and detaining Ignatz Mezei. Like Knauff, Mezei
was also kept on Ellis Island based on secret evidence of the
security risk he presented. Again, the Court found no
problem with this, even though Mezei was returning from an
effort to visit his dying mother after twenty-five years of
living in the United States.33 Mezei, the Supreme Court
concluded, was provided “temporary harborage” on Ellis
Island, “a legislative grace.”34 More recently, DHS set up
“family residential centers”—secured facilities in remote
locations to which access is highly regulated—to protect
mothers detained alongside their children. At the largest
such facility cells are “bedroom blocks,” and the facility is
organized into “neighborhoods” named after brown bears,
green turtles, and, as one lawyer put it, other “really cute
names.”35 Couching confinement as a lifesaving example of
graciousness allows officials involved in the detention
process to feel upstanding but does nothing to lessen the
harshness of the detention experience.
Touted as a humanitarian gesture that is nonetheless a
public safety imperative, immigration imprisonment seems
like the best of both worlds. Some migrants need protection;
others we need protection from. Either way, imprisonment is
good for the migrants who are locked up, and it’s good for
the rest of us who aren’t. Rough spots exist, but they are
imagined as the unruly edges of an otherwise upstanding
policy. The violence that necessarily accompanies the prison
experience is overlooked, and the fact that imprisonment
should not even be on the table as a reasonable policy
option isn’t considered.
More than simply unjustified by safety concerns, like with
other types of punishment, immigration imprisonment is
dispatched in a manner that is racially biased. Twice over,
actually. First, as Michelle Alexander and others have
explained in great detail, the criminal justice system marks
people as criminals through the well-known prisms of race
and class. Poor people of color are policed, prosecuted, and
punished more than are white people who engage in
comparable misconduct. In the impoverished corner of
South Texas in which I grew up, cops could show up at any
moment. Border Patrol agents lurked outside stores
downtown and drove along isolated roads near the Rio
Grande. Every time I crossed the bridge back into Texas, I
had to prove my right to be there and shed any suspicion
that I was up to no good.
Then came college. During my first week in the Ivy
League, I saw more crime than I ever had before. Marijuana
came out from behind classics of English literature, and fake
IDs were as common as late-night pizza. Had they wanted
to, campus cops literally could have smelled their way to
federal drug crimes. Once there, they probably would have
found some underage drinking and identity theft. But they
did not want to. As spaces that are dominated by wealthy
white people, colleges are relatively privileged. City cops
and campus law enforcement officers have little interest in
cracking down on illegal activity perpetrated by the children
of parents all too ready to use whatever influence they have
to ensure that their children are able to learn who they are
without the stigma of criminality attaching itself to them.
That’s a luxury many people of color do not have.
Immigration law piles on top of criminal law, becoming a
second layer of racially biased punishment. The mandatorydetention provision of civil immigration law that requires ICE
to take certain people into custody and that prevents
immigration judges from letting them free turns almost
exclusively on criminal activity.
36 On the criminal end of the
immigration-law spectrum, migrants convicted of illegal
reentry, a felony under federal law, are subject to much
more prison time if they have prior convictions for certain
offenses—from an eight-year bump following any felony
conviction to an eighteen-year bump following an
aggravated felony conviction.37
Policies promoted by both Democrats and Republicans
reveal a critical reliance on the criminal justice system.
Lock-step use of the criminal justice system to identify
people who merit removal from the United States ignores its
biases. Take, for example, the rate of imprisonment for black
migrants. Often overlooked, there are roughly 3.7 million
black migrants in the United States. This is about 7 percent
of the total noncitizen population.38 Reflecting the racially
skewed criminal justice system, black migrants are more
likely to be detained by ICE for a criminal reason than are
other migrants. According to an analysis of 2014
immigrationcourt data, 14 percent of all migrants detained
faced removal on a criminal basis. For black migrants, that
number was closer to 50 percent. Not surprising, black
migrants also make up an outsized percentage of the people
detained by ICE because of a criminal ground for removal. In
2014, they made up 17 percent of migrants detained
because of a crime, though they were less than 5 percent of
the people facing the possibility of removal that year.
Despite the lopsided racial impact, policymakers seldom
question immigration imprisonment’s use of the stigma of
criminality. On the contrary, legislators have repeatedly
endorsed greater entanglement between criminal law and
immigration law, allowing the immigration-prison regime to
grow into a sprawling prison archipelago. It should sit
uncomfortably with policymakers that immigration law uses
encounters with the criminal justice system to determine
who is fit for imprisonment and removal.
Likewise, Trump’s claim that migrants violate
immigration law varies between misinformed and blatantly
false. Asylum-seekers who come to the United States
without the federal government’s permission certainly
violate one aspect of immigration law, but they are also
complying with the letter and spirit of another section. To jail
asylum-seekers because they violated immigration law
tramples on Congress’s directive that anyone “who is
physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival
…), irrespective of such alien’s status” can request
protection in the United States, a right echoed in
international treaties.40
Counterintuitively, there is something refreshing about
Trump’s excesses. Instead of relying on the tragically biased
criminal justice system to sort migrants into desirable and
undesirable categories, Trump’s approach doesn’t turn on
the effects of biased policing. Everyone falls into his net
simply because they are aliens, tarred with the stigma of
dangerousness, marked by the stain of race.
Even if we could agree on who is good and who is bad, using
immigration law to sort migrants means that some people
are targeted merely because they happened to be born on
the wrong side of the border. Is my moral claim to belonging
in the United States really so flimsy that it turns on the fact
that my mother gave birth to me eight miles north of the
Rio Grande rather than eight miles south? I like to think that
it has more to do with the friends I’ve made here, the work I
do with community groups, or the positive impact I have on
students. Every day, I’m grateful for the opportunity I had to
go to college. I don’t regret for a second turning down all
the offers I received from military recruiters when I was a
high school student contemplating my next step in life. But
does my good fortune mean my moral claim is stronger than
that of Jerry Armijo, the man who was willing to sacrifice his
life in service to this country? Is it stronger than that of
Edgar Baltazar García, the Army veteran with PTSD and a
brain injury who was detained after an hours-long trip to
Whether we categorize migrants as good or bad based
on Obama’s metrics or Trump’s, we are still segregating
based on nothing more than citizenship status, which has
nothing to do with our individual contributions to the United
States and even less to do with moral worth. Jerry Armijo
and Edgar Baltazar García remind us that the legal chasm
that divides citizens from everyone else leaves immigration
imprisonment to fall on some and not on others because of
politics, not morality. I don’t have a moral claim to belonging
in the United States that they don’t. All I have that they
don’t is a U.S. passport. To me, that’s not good enough.
The story of immigration imprisonment isn’t a morality
tale. Conversations about migrants are frequently divorced
from reality, but that doesn’t make them stories about right
and wrong. President Trump’s wife, Melania, who was born
in Slovenia, once said that some people follow immigration
law because that’s just how they are. “It never crossed my
mind to stay here without papers,” she said in 2015 when
her husband was still nothing more than an outlandish
presidential contender. “That is just the person you are. You
follow the rules. You follow the law.”41 To Melania, doing
what immigration law requires is just a question of morals.
Some people, like her, have it. Others don’t.
I remembered that when I was living in Slovenia I
experienced my own migration problems. There to do
research supported by the State Department’s Fulbright
scholarship program, I had direct access to helpful officials
at the United States Embassy. Even in the privileged
situation that I was in, with a level of assistance
unimaginable to most migrants (I once got wind that my
predicament had made it to the ambassador’s desk), I was
close to going beyond the number of days I could be in
Slovenia without a residence permit. But when I raised this
with my embassy liaison, she responded assuredly, “Don’t
worry. If that happens, it won’t be because you did anything
wrong.” That was small comfort, though it does make me
laugh anytime I mention the story to immigration lawyers in
the United States. Imagine telling a judge: “Yes, my client
violated immigration law, but it wasn’t his fault.” That
wouldn’t help anyone escape handcuffs.
Melania is far from the only person to claim that people
who violate immigration law are morally suspect, but her
trite comment is a convenient reminder that migration can’t
be boiled down to morals. People don’t move because they
are innately ethical or unethical. They don’t violate
immigration restrictions for those reasons either, so they
shouldn’t be locked up for those reasons.
Years ago, I wrapped up a meeting with a client inside
Willacy. Like many facilities, Willacy didn’t have dedicated
areas for lawyers to speak with clients privately. In the rush
to build the prison critics call “tent city,” they forgot that
immigration prisoners can hire lawyers, and some of them
even manage to do so. As a result, like the few other
attorneys who represented clients there, my clients and I
usually met inside an empty courtroom tucked into Willacy’s
administrative building. When the courtrooms were all being
used, we just stood in the hallway between the courtrooms
and the holding cells. Done meeting with me, my client
walked back into the holding cell to join another ten or
fifteen prisoners. Some were waiting for court; others were
waiting for their lawyers. Ready to head back to the office, I
looked around for the guard to let me out. There was no
guard. I didn’t know how long it had been since the guard
had left, and I didn’t know where he had gone, but it didn’t
matter. By this point it was me and a bunch of bored
migrants in the back corridor of an immigration prison’s
The prison system’s rationale says this is a recipe for
disaster. Reds and oranges—I very rarely met with blueuniformed migrants—can’t be unguarded. They are too
volatile to be trusted. And yet here we were: reds, oranges,
blues, and me in my dark suit and with a pile of papers,
standing and sitting around waiting for something to
happen. For a guard to call a name for an audience with an
immigration judge or to head back to the living quarters. Or
just waiting to get back into my car and drive to the office.
Collectively, we waited.
Nothing happened. The boredom weighed heavier, but
nothing happened. It’s remarkable only because ICE’s
detention practice suggests something far more exciting—
more violent, more dangerous—should have happened.
ICE’s detention system, Obama-era reform chief Dora
Schriro wrote, is “based largely upon the principles of
command and control.”42 Why? Because, to ICE, the
prisoners are too dangerous to be left to command their
own destinies or to control the far more banal details of
daily living: when to eat, who to visit, what to read or watch
on television. Minnesota’s Nobles County Jail, for example,
let guards throw migrants into solitary confinement for
“watching [the] Spanish channel on the TV.”43
During that period of time in which I was stuck alongside
a pool of locked-up migrants, the prisoners were effectively
in charge, and nothing happened. Yet everything happened,
because in boredom’s triumph the entire scene illustrated
the farce of ICE’s command-and-control philosophy. Anytime
a group of strangers gathers, there is the slim possibility of
violence. Anytime a group of strangers is forcibly confined
and subjected to systematic infantilization, the slim
possibility grows. Despite this, the most palpable violence
that day was the loud clang of the prison door when the
guard later returned, and I was finally allowed to walk into
the lobby, out the front door, and toward my car. No one
acknowledged that the non-event illustrated the myth on
which the prison regime’s heavy-handedness is based.
Most days are quiet in Milan, New Mexico. The Wow Diner
offers a 1950s throwback experience with red booths lining
the U-shaped building, and Kiva Café smothers its sopapillas
in a red chili that screams New Mexico cuisine. If Milan’s
three thousand residents want more options, they can jump
on Interstate 40 and head an hour and a half east to
Unless they are locked up. Almost 40 percent of Milan’s
population lives inside the Cibola County Correctional
Center, a monochromatic complex of beige buildings tucked
behind the Wow Diner. Owned and run by CoreCivic, one of
the two largest operators of private prisons in the United
States, for many years the Cibola County Correctional
Center held people convicted of entering the United States
clandestinely, a federal crime. As convicted criminals, they
were behind bars because they were being punished. Rings
of concertina wire stretched across the tops of two layers of
fencing leave a clear impression that punishment is the
goal. In return for running the Milan prison, CoreCivic
received a steady revenue stream from the Justice
Department’s Bureau of Prisons. Milan, meanwhile, came to
value the prison’s place in the town’s slumbering economy.
Roughly three hundred locals worked there.
When the Bureau of Prisons announced in July 2016 that
it would not renew its contract with CoreCivic—at the time
known as the Corrections Corporation of America (CCA)—
effective October 1 of that year, a shudder jolted the
community. One resident, reflecting on the many prison
employees she knew whose livelihoods were suddenly at
risk, boiled down her thoughts to this: “It just … it sucks.”1
For migrants’ rights advocates, the Bureau of Prisons’
announcement was welcome news they had long pushed
for. The Milan prison had anything but a spotless history. A
scathing investigative report published in The Nation earlier
in 2016 chronicled the Cibola County Correctional Center’s
troubling practices. At various times throughout a sixteenyear period, inmates protested, guards tear-gassed, doctors
were unavailable, and migrants died. Meanwhile, BOP
regularly renewed the facility’s contract.2 Cibola,
investigative reporter Seth Freed Wessler concluded, was
“among the BOP’s most problem-prone prisons.”3 This is
saying something, particularly because BOP’s private prison
contractors were not known for their seamless operations.
The fourteen private prisons under contract with BOP in
2016, the Justice Department’s inspector general reported,
were more likely to face safety and security problems than
were prisons run by BOP’s own staff.4 A few months later, in
the waning days of Obama’s tenure, the Justice Department
announced it would cut back its use of private prisons, a
decision that the Trump administration reversed almost
immediately upon taking power.
In the summer of 2016, the federal prison agency’s
decision to cut off the Cibola County facility seemed like its
death knell. Who would want to do business with a prison so
problematic that BOP had decided to sever its fifteen-year
relationship? Seeing the imminent hit to employment rise
ominously on the economic horizon, local officials and CCA
executives sprung into action. The consequences of BOP’s
decision were frightening. For some officials, that made the
path forward unambiguous. “My first option is for it to stay
private because of the revenue the prison produces for the
city of Milan,” the local state senator, Democrat Clemente
Sánchez, said.5
Before the month of October was out, Sánchez could
breathe a sigh of relief, and CCA officials could celebrate
success. Another contract was in place, this time with DHS.
As the federal government’s principal immigration-law
enforcement arm, ICE is tasked with detaining people facing
the possibility of forcible removal through the nation’s
immigration court system. Except for when ICE officers
mistakenly pick up a U.S. citizen, everyone locked up on
behalf of ICE is either a migrant waiting to learn whether
she will be allowed to remain in the United States or a
migrant already ordered removed awaiting the next
available one-way spot on an airplane or bus. Unlike BOP,
ICE doesn’t imprison to punish. It imprisons to give the
federal government time to decide who gets to be in the
United States and who doesn’t. This isn’t punishment,
courts tell us; it’s just deciding where on the map people
should stand.
A similar story played out in Willacy County in 2015.
Tucked into an isolated part of deep South Texas, the Willacy
County Processing Center held migrants facing possible
removal through the immigration courts. And like with the
Cibola County facility, it did so on behalf of ICE. When I
represented migrants locked up in Willacy County, most of
the people I saw were there because of some encounter
with police officers—maybe a new conviction, sometimes an
older conviction flagged upon returning to the United States
from a trip abroad.
Willacy County was the picture of a minimum-security
prison. The pungent odor of onions that fills the air when
driving north along Highway 77 signals the industry that
dominates the scenery and the local economy: agriculture.
Up the road in the county seat of Raymondville, population
11,000, white farmers gather at the Whataburger fast-food
joint for their morning coffee, while Latinos keep the
abutting Stripes convenience store busy selling breakfast
tacos and lunch plates. It isn’t far from Stripes, where I often
stopped, to the prison compound. Surrounded by farms, the
Willacy County Processing Center leaves an impression.
Instead of brick and mortar, there are enormous tents
enclosed by barbed wire.
The white canvas structures suggest a temporary holding
facility. The truth is that the center was built in 2006. Private
prison company Management and Training Corporation
(MTC) held migrants there for days, months, or years—
whatever it took for the immigration court case to unfold or
the migrant to give up and agree to deportation. Migrants
regularly complained about conditions inside. One former
client, a man who had spent most of a decade in a federal
prison for a serious drug-trafficking conviction and was later
deported, told me that the prison was so poorly run that he
would rather be back in a federal penitentiary. Advocates
regularly criticized the poor medical care and frequency of
sexual assaults. But little changed. ICE continued relying on
MTC to house its detainees at the Willacy County facility.
Eventually, the complaints made their way to prominent
journalist María Hinojosa, who took a television
documentary crew inside Willacy County. In October 2011,
Hinojosa and her team aired a harsh exposé of violence,
mismanagement, and cover-ups on PBS stations nationwide.
The documentary, Lost in Detention, bolstered the criticisms
that detained migrants and their advocates had long voiced.
Pushed into a corner, ICE finally severed its relationship with
the Willacy County facility. It would no longer send people
there while they waited to learn whether they would be
allowed to remain in the United States.
Mirroring the Cibola County experience, one month later
BOP stepped in to make use of the prison space suddenly
freed. Because BOP is charged with confining people
convicted of an offense, the facility got a name change.
Instead of the Willacy County Processing Center, it became
the Willacy County Correctional Center. Everything else
remained untouched. The canvas tents stayed put. Barbed
wire continued to divide the people inside from the rest of
us outside. The same guards kept watch. The same private
prison corporation, MTC, earned revenue from the federal
government. People found themselves behind the barbed
wire for the same reason: the federal government claimed
they had violated immigration law. And the Willacy County
coffers continued receiving payments for renting the jail to
the federal government.
That is, until 2015, when inmates rebelled, leaving the
facility uninhabitable. Three years later, it reopened with a
different, but familiar, customer: ICE. As it geared up, the
elected county judge complimented MTC in a company
press release and celebrated its relaunch: “They are
committed to the well-being of the people in their care. As
you know, the last few years have been financially
challenging for the county, so we look forward to this new
facility and the economic benefits it will bring to our area.”6
The past, it seems, had been swept away.
More than a year after President Obama handed over the
reins of government to President Trump, a top ICE official
under Obama lamented the immigration prison system he’d
overseen. John Sandweg, ICE’s acting chief for a time, said
that the size of the agency’s detention population “weighed
heavily on me.” There were about five thousand people who
deserved confinement, he estimated, because they posed a
danger to the public. Everyone else should get an ankle
bracelet or some other “safer, more humane” oversight built
on high-tech surveillance. Instead, Sandweg had run one of
the largest prison systems in the country. There was no way
around it, he said, because “the public likes to hear
‘detention.’ It’s billions of dollars for a talking point.”7
Even accounting for the benefit of hindsight, Sandweg’s
words reek of a delusional attempt to make amends for his
pivotal role in operating the nation’s immigration prison
regime. Under President Obama’s watch, ICE agents locked
up about 80 percent of the migrants they apprehended,
even though most of the time agents had the legal authority
to release them.8 While ICE detained, the immigration prison
system grew in size and importance. If we are to believe
Sandweg, it did so despite the wishes of the people running
it, but politics and money built immigration imprisonment in
the 1980s and have made it impossible to shrink it. With
every passing year, the immigration prison system’s
tentacles became more firmly embedded in immigration-law
enforcement tactics.
These days, there is a host of elected officials,
corporations, and individual investors who profit
handsomely from immigration prisons. Their political and
financial windfalls are hidden in plain sight. To the legislators
who have expanded immigration imprisonment, this is a
politically profitable policy choice. In the mid-1980s, the
mayor of downcast Oakdale, Louisiana, successfully pitched
his city to the INS, ICE’s predecessor, as the site of one of
the agency’s first prisons. Mayor George Mowad saw
immigration prisons as a “recession-proof” industry that
could bring about Oakdale’s “economic rebirth”—the worse
the global economy got, the better it would get for Mowad’s
7,200 constituents because bad job prospects elsewhere
would bring migrants to the United States with or without
the federal government’s authorization.9 To this day,
Oakdale remains part of the federal government’s
immigration prison network.
Mayor Mowad’s straightforward take on the value of an
immigration prison was simple and self-serving, but not
unique. Other elected officials have taken similar
approaches. When a ship full of Chinese migrants became
grounded near New York City in June 1993, a county
commissioner in Perry County, Pennsylvania, said, “We tried
like the dickens to get some of those Chinese.… The big
reason we’re doing all this is because we want to keep
everybody working.”10 To these politicians, immigration
prisons are just another type of economic development. If
factories pull out or farming goes under, prisons promise
quick returns. Soon after the ink dries on a contract,
surveying and clearing, shoveling and pouring mark the
beginnings of a massive construction or expansion project.
Then come the guards, who need to be hired and trained.
Later come the food vendors, maintenance staff, and, of
course, health professionals like doctor-turned-mayor
George Mowad. “It’s going to be an economic boom,”
county judge David Davis of Haskell County, Texas, said of a
prison that was reopening after a dispute between ICE and a
private prison operator. “When you have the potential of
having 150 or 160 employees that did not have a job six
weeks ago and they come to work, you know the grocery
stores, convenience stores, almost everyone is going to
benefit from it.”11
Prison towns aren’t new to the United States.
Generations of politicians have touted the financial benefits
of locking up people, especially in rural communities.
Immigration prisons are just adding a twist to this timetested calculation. To politicians in city halls and state
legislatures, the appeal of immigration prisons is simple. For
the sake of confining migrants, the federal government is
willing to send millions of dollars into small towns and big
cities every day in the form of construction contracts,
payroll taxes, and everything else that people with a steady
paycheck tend to buy—from hamburgers to houses. If you’re
an elected official, your constituents get jobs. Better yet,
someone else pays them.
An hour southeast of Phoenix, the town of Florence,
Arizona, models the allure prisons have on rural
communities. Some places are famous for making cars or
boots. Florence builds prisons. Four years before Arizona
became a state, prisoners were offloaded from a train and
forced to start building their own cells in this out-of-the-way
part of the Sonoran Desert. More than a century later, the
state prison that they built still holds inmates, but it’s far
from alone. Florence now hosts eight prisons. ICE, the U.S.
Marshals, and the Bureau of Prisons represent the federal
government. “Florence was built around the prisons,” write
political scientists Roxanne Lynn Doty and Elizabeth
Shannon Wheatley.
12 Combined, they hold roughly twothirds of Florence’s 25,000 residents. Public and private,
state prisoners and county inmates. Everyone, it seems, can
be locked up in Florence. During World War II, it held
German prisoners of war and Japanese detainees removed
from their West Coast homes. More famous are the
murderers: from the “trunk murderess” Winnie Ruth Judd,
who spent almost four decades locked up for two murders
she said she didn’t commit, to Robert Comer, a murderer
and rapist who asked the courts to hurry up his death
But the most profitable might be the migrants. Unlike
county jails and state prisons, the cost of immigration
prisons falls on the federal government. Whether it’s the
U.S. Marshals Service paying to detain people facing
criminal prosecution for illegal entry or ICE paying to detain
migrants awaiting a hearing before an immigration judge,
the money comes from the same source: the United States
Treasury. Cities, counties, and states pay almost nothing. To
local elected officials, immigration prisons are a financial
and political boon. Haskell County in Texas had just ponied
up $22 million at the request of the Texas prison agency,
when plans changed. “We were beginning construction and
the State of Texas called and said we’re not coming.… We
now have ICE and it stays over 90 percent full,” Judge Davis
said.14 Congress sends money to hire local workers, who in
turn reward elected officials for their good fortune.
We can think of immigration prisons as a jobs program.
For economically struggling regions where good-paying,
steady jobs are hard to come by, immigration prisons are
the twenty-first-century version of the Depression-era Works
Progress Administration. Through the WPA, scores of
workers laid the wires that lit up the Tennessee Valley,
dressed up post offices with glorious murals, and recorded
the memories of former slaves. Immigration prisons also
provide jobs in out-of-the-way places. Only instead of hiring
legions of unemployed workers to build important
infrastructure and contribute to the nation’s historical and
artistic stock, the federal government now hires some
people to build prisons and others to keep them running.
And instead of bridges, timeless works of art, and priceless
oral histories, we have the trauma of imprisonment to show
for it. The consequences are different, but to mayors and
city councilors, it is someone else’s money for their gain.
With eye-catching dollar amounts moving from
Washington to small towns, it is no surprise that elected
officials fight to keep federally financed prisoners in their
communities. “It’s a money-making machine,” the Houston
chef turned immigration prisoner David Rodriguez told me.
Whether in Cibola, Willacy, or somewhere else, when a
facility verges on going out of business, local elected
officials allied with company executives look for another
customer for their job-providing prisons. Instead of trying to
find other job prospects for their constituents, elected
officials come to depend on the federal government’s
largesse and often show no interest in changing course. This
is a form of what prison scholars Franklin Zimring and
Gordon Hawkins referred to as the “correctional free
It’s not that lunch is actually free; it’s that
someone else is picking up the bill. In Idaho, the Jerome
County sheriff went after an ICE contract for months as a
way of making easy money. When those negotiations
stalled, the sheriff turned to the U.S. Marshals, which pays
as much as ICE: $75 per day per person. And when local
politicians urged the sheriff to take the state prison chief’s
money, the sheriff balked. “It’s a matter of economics,” the
sheriff said, comparing the federal government’s rate to the
$45 per day he could expect from the state. “I think the
people that voted for the jail in Jerome County expect us to
make the best decision to get this bond paid off early,” he
said, referring to the county’s prison debt.16
For all their costs, immigration prisons often fail to
deliver the benefits they promise. As the sheriff of Jerome
County, Idaho, learned, sometimes immigration prison
contracts don’t pan out. Then there are promises that
private prisons make. Private prison corporations tout
guaranteed revenue like a magical elixir to cure
unemployment. To entice the federal government to open its
immigration-prison funding stream, they convince local
officials to take on new debt for prison construction projects.
Maybe build a new facility or simply fix up and expand an
older one. Either way, taxpayers wind up with debt and a
promise that the federal government will pay. With
bipartisan support for immigration prisons stretching back
to the late 1980s, this strategy frequently works out for a
time. But just as the federal government can swoop in with
its big purse, it can also pull out.
When that happens, local governments are left with piles
of debt and empty prison beds, a reality that Cibola knows
all too well. Officials there had become so thoroughly
hooked on the federal government’s money that they were
spending it before receiving it. After the county bounced a
check for $7 million—money it owed CoreCivic—officials
admitted that the county had spent $9.5 million over three
years that it didn’t have.17 Cibola is extreme, but it’s not
alone in facing the hard realities of the immigration-prison
business. In Ramsey County, Minnesota, which includes
state capital St. Paul, ICE’s inmates were costing the sheriff
$160 per day, but the federal government was only paying
$80.18 Over in Texas, McLennan County officials facing $49
million in jail debt hired a private prison corporation, LaSalle
Corrections, “because of LaSalle’s reputation for bringing
federal inmates to their facilities,” and offered ICE three
hundred beds.19
Once the jobs come, elected officials turn their attention
to keeping them in town. In Georgia’s Irwin County, the
chairman of the Board of Commissioners lamented the
possibility that the local immigration prison would shutter:
“If it closes, then everybody loses their jobs … and the
inmates go back to wherever they came from, but we hope
that it never gets to that.”20 Winning a contract only to lose
it later hurts just as much, maybe more. Just like in Cibola
County, when the Willacy County facility lost its contract
with BOP to house convicted immigration offenders (after
previously losing its contract with ICE to house people facing
the possibility of removal from the United States), local
officials worried about layoffs for the prison staff. “I feel for
the staff,” one official said. “It must be very stressful to be
sitting in limbo.”21 The former mayor was more direct: “We
need everybody to be employed. We need those
Pinal County, Arizona, where Florence serves as the
county seat, has fewer college graduates than the rest of
the state and more people without jobs. CoreCivic’s
footprint in the county’s economy is big. In Florence, the
company runs two immigration prisons. It has four more in
Eloy, twenty-five miles farther southwest in Pinal County.
The Central Arizona Detention Center Complex-East and its
counterpart, the Central Arizona Detention Center ComplexWest, in Florence are all-in-one facilities. They both hold
inmates for ICE, the U.S. Marshals, and the Bureau of
Prisons. Twelve-foot-high fences surround concrete corridors
and steel doors. With room for more than four thousand
prisoners, CoreCivic can house 15 percent of the town’s
population. Back in 2015, the company—then called CCA—
was charging ICE $87.26 per inmate per day.
23 At this rate,
the company could easily bring in hundreds of thousands of
dollars every day from its Florence operations alone.
CoreCivic isn’t the only immigration prison operation in
town. ICE runs its own facility, the Florence Service
Processing Center. The “Service” in the name harkens back
to its time as an INS facility, but it’s actually much older
than that. It got its start housing World War II prisoners of
war, then had a second life under BOP control. The INS was
its third operator, and ICE its fourth. Even though it owns
the FSPC, ICE gets operational help from outside vendors. In
2009 it awarded a little-known company, Asset Protection
and Security Services LP, a $184 million contract to run the
cafeteria, provide ground transportation, and keep the
facility secure for twelve months.24 A few years later, in
2017, ICE reported to Congress that it spent $222.05 to
house each of its 371 Florence detainees every night.25
Costs would almost certainly be higher if ICE couldn’t pay
detainees $1.00 per day to staff the kitchen. In the cold
language of bureaucratic standards, ICE says, “Detainees
shall receive monetary compensation for work.… The
compensation is at least $1.00 (USD) per day.”26 The
government says this is a “stipend” for participating in the
“Detainee Voluntary Work Program.”27 Alejandro Menocal
calls it “forced labor.” For three months, he was an inmate
worker at a private prison outside Denver run by GEO
Group, CoreCivic’s main competitor. Now he’s the lead
plaintiff in the first-of-its-kind lawsuit claiming the company
demands cheap labor or inmates risk solitary confinement.28
Another former ICE prisoner, Robinson Martinez, would likely
agree with him. Back in 2013, he complained that an officer
for the private prison woke him at 3:00 a.m. and instructed
him to start cleaning the facility. “I said ‘I do not have to
work because this is a volunteer work,” he wrote in a
complaint letter to ICE. “She responded by saying ‘well then
I will right [sic] you up.’” Too many write-ups, and he could
end up in segregation, Martinez feared.29
Despite these problems, to the variety of third-party
actors invested in immigration imprisonment, it is financially
profitable. Private prison corporations publicly claim to be
agnostic about laws expanding imprisonment, but this is a
tough claim to swallow given how much they reap from
immigration prisons. Roughly two-thirds of ICE’s detainees
are held in private facilities.30 With an average daily
population of 38,106 in fiscal year 2017, that is 24,768
people in private facilities. At an average cost of $128.88
per day for each person, the private prison industry as a
whole gets $3.2 million from ICE alone every single day.
Thinking about the private prison–government
relationship in a different way, one-quarter of CoreCivic’s
revenue comes from ICE.32 The same is true of 19 percent of
GEO Group’s business.33 Add contracts with the USMS and
BOP to the mix and it becomes clear just how dependent the
leading private prison corporations are on federal revenue.
Roughly half of GEO Group and CoreCivic’s money originates
with the federal government.34
Prison companies are more than happy to remind
politicians about their role in boosting the local economy. In
February 2010, Arizona was set to jump onto the
international stage as it considered passing what was at the
time the harshest piece of immigration legislation in many
years. As legislators debated and ordinary people took to
the streets—in favor and in strident opposition—CCA (as
CoreCivic was then known) issued an economic analysis
touting its contributions to the state’s economy. “The
study’s findings are compelling,” the study’s company-hired
authors claimed. Statewide, CCA had 2,773 employees and
indirectly supported another 1,700 jobs. That spells $435
million of economic activity and $26.2 million in tax
revenue. In Pinal County, home to CCA’s six prisons in
Florence and Eloy, the company’s presence, the report went
on in bold type, is “already paying off.” With a payroll that
includes nearly 5 percent of the county’s workers, it’s the
biggest non-government employer.
35 When the study was
publicly issued, the company ran a press release claiming it
“proves public-private partnerships in corrections energize[]
state economies,” and the Prescott News repeated many of
the study’s claims.36 Numbers like these are nothing a
politician can ignore. Even if someone wanted to stand up to
CCA—and few in towns like Florence appear interested—
they would need a ready answer to the obvious challenge of
finding an economic substitute that is as easy to imagine as
the brick-and-mortar prisons down the street.
Private prison corporations do their part to limit secondguessing by regularly contributing to candidates and elected
officials. From 2017 to 2018, the three largest private prison
corporations operating in the United States—GEO Group,
CoreCivic, and Utah-based Management & Training
Corporation—sent over $800,000 to candidates’ campaigns.
Collectively, the private prison industry spent over three
times that amount in lobbying: $3.5 million in 2017 alone.
While most of their financial largess went to Republicans,
Henry Cuellar, a Democratic member of Congress
representing parts of the Texas border, was the fourthhighest recipient.37
In 2014, Cuellar partnered with his fellow
Texan, Republican senator John Cornyn, to sponsor a bill that
would have expanded detention of children—what the
proposal called “mandatory protective custody”—while
government officials considered their asylum applications.38
The bill failed, but it did win Cuellar a “Humpday Hall of
Shame” award from the activist group Grassroots
What happens in Washington certainly matters, but
private prisons don’t ignore the role states play. National
Public Radio, for example, credited private prisons with a
“quiet, behind-the-scenes effort to help draft and pass
Arizona Senate Bill 1070.”40 By 2017, some of the industry’s
allies had lost any pretense of keeping their relationship
behind the scenes. A Republican state legislator in Texas
pushing a bill that would have made it much easier for
private prisons to detain children there was explicit about
who wrote the proposal. “I’ve known the lady who’s their
lobbyist for a long time,” Representative John Raney said to
reporters. “That’s where the legislation came from.”41 The
following year, GEO gave him $1,500, tripling the total
amount the company had given Raney in his seven-year
political career.
Despite their substantial coffers, private prison
corporations can’t operate without additional financial
backing. As publicly-traded companies, CoreCivic and GEO
frequently submit reports to the Securities and Exchange
Commission. Looking at those documents closely reveals
how entangled private prisons are with run-of-the-mill
financial institutions. Accounting giant Ernst & Young audits
CoreCivic’s financial controls, while its competitor Grant
Thornton audits GEO Group.43 For many years, major
banking institutions like Bank of America and Wells Fargo
helped the companies obtain credit.44 Both private prison
companies depend on constant credit to do everything from
making large purchases of land and facilities to paying for
operations. When 2017 ended, for example, CoreCivic had
$694 million available in an existing credit line and $1.4
billion in debt.45 By mid-2019, their ability to get more loans
was cast into doubt when major banks began falling in line
with anti–private prison activists. In January, Wells Fargo
announced it was no longer seeking business from private
prison corporations. In March, JPMorgan Chase said that it
would no longer bankroll private prisons. Still, halfway into
the year both major prison corporations were doing well.
CoreCivic reported $490 million in total revenue and GEO
Group another $614 million—all in a single quarter.
“Who owns these companies?” a student in one of my
classes asked me not too long ago. “I do, I assume,” I said.
Like most other salaried university employees, I participate
in a retirement account run by industry giant TIAA. Most of
my retirement savings consists of mutual fund purchases.
Maybe it’s careless, but all I do is pick an estimated
retirement year, and TIAA does the rest. They invest
contributions that I make and those that my employer
makes on my behalf in a mix of financial instruments that I
don’t begin to understand. But after that conversation with
my students, I tried figuring out whether my assumption
was correct. Do I actually support the private prison industry
that profits from warehousing migrants? I failed. I couldn’t
find a list of specific investments.
The truth is that private prisons are owned by a diverse
range of private and public investors. In March 2019,
pension funds for Ohio public employees and New York
teachers each held over 250,000 shares of CoreCivic. With
eighteen million shares, Vanguard Group, a suburban
Philadelphia company that offers mutual funds and 401(k)
plans, among other investments, was CoreCivic’s largest
46 Vanguard held a similarly large number of GEO’s
shares, putting it at the top of that company’s ownership list
as well.47 Retirement accounts for public employees in
California, New York, Alabama, and several more states held
shares of GEO Group. On both companies’ investor lists is
my retirement account manager, TIAA. With just over
234,000 shares of CoreCivic priced at $24.00 and about
460,000 shares of GEO priced at roughly $23 each,
educators like me have a $5.6 million stake in CoreCivic and
$10.6 million thrown in with GEO. For now, at least, my
wealth depends in part on GEO’s success locking up
My complicity in private prisons highlights the difficulty
of scaling back immigration imprisonment. Cutting off
CoreCivic and GEO’s tentacles means cutting off part of my
retirement financial cushion. I can’t count on public
pensions to live a comfortable life in old age. If I don’t save
part of my income and invest it wisely, the likelihood that I
will end my days in poverty jumps. Growing up in public
housing, I remember poverty well and have no interest
revisiting that part of my childhood. Perversely, it means
that I am buying my future comfort at the expense of other
people’s present discomfort—and far worse.
This doesn’t sit well with me, but figuring out what to do
about it is daunting. Until my student’s question, I hadn’t
seriously thought about the possibility of shifting my own
money out of the private prison industry. Wouldn’t that
amount to a one-person boycott? I spend a good deal of
time talking with activists and reading their emails, but I
couldn’t recall having been asked to do this. On the
contrary, I can’t count the number of fundraising pitches I
receive. Like most people, my willingness to give away
money is tied to my financial health. The larger my bank
account is, the larger and more frequently that I donate to
causes I support—including the very organizations whose
mission it is to help migrants.
So, I started searching for advice. The Prison Divestment
Campaign, a coalition of activists and unions, says it “is
working to divest from criminalization and incarceration,
and demand reparations and reinvestment in our
communities,” but it focuses on public investors like cities
and large institutional investors like universities. It asks
nothing of individual investors like me.
To make sense of this, I spoke with Daniel Carillo, a longtime divestment advocate. Activists chose to focus on
institutional investors, Carillo told me, as a strategic matter.
Limited resources mean that they couldn’t prioritize
individual investors, because that’s not where the big pots
of money are. That makes sense. No matter how well my
investment portfolio does, it will never compare to my
employer’s. Still, Carillo wasn’t willing to give me a clean
out. People like me, he said, should move money into
socially responsible investment funds that screen out the
prison industry. As I learned while scouring my own
investments, private prison corporations that are publicly
traded—companies like CoreCivic and GEO—are easiest to
When my money is tied up with my employer, as is true
for many professional employees, the road to divestment
begins with education. Track down a contact person at the
investment fund and ask for a pension portfolio. Raise tough
questions. And think hard about organizing co-workers to
demand prison-free investments. The socially responsible
investment industry will respond, Carillo said. “Their bottom
line is money,” he explained. “When we first spoke to them,
they did not think the prison industry was a great thing to
add. Now they see that this is a growing business, so it’s a
money-maker.” The response to exploitative capitalism
might start with something as simple as identifying
alternative paths to wealth creation.
Part III
Standing where we are now, with more people locked up
than ever before for daring to move across the face of the
Earth, it is hard to imagine policing immigration law without
prisons. Since the days of President Jimmy Carter’s
administration, immigration prisons have enjoyed bipartisan
With President Trump’s election, the rhetoric and reality
of immigration imprisonment has become more corrosive
than ever. From the start, his election promised more
imprisonment. His first attorney general, Jeff Sessions,
worked hard to bring that promise to life. His second,
William Barr, picked up where Sessions left off, and there is
certainly nothing on the political horizon suggesting that
immigration prisons are losing favor in Washington or
anywhere else. In the summer of 2018, President Trump’s
immigration enforcement practices careened into what, for
many people, was the previously unthinkable image of
government officials stripping children from their parents. I
saw children no older than six jumping rope under a beating
Arizona sun, their bodies so light that the rope picked up
more dirt than their feet did from the parched floor. Tall
fences, electronic locks, and a twenty-four-hour surveillance
team make sure that few children think hard about leaving.
Sharon Phillips, a New York City lawyer who has
repeatedly visited the country’s largest family-only facility in
Texas, adds much-needed context. “This isn’t about Trump.
It didn’t start with him,” she told me. Indeed, under
President Obama, the federal government first closed Bushera family immigration prisons. A few years later, the
Obama administration opened new family immigration
prisons. Trump didn’t start family imprisonment, but, as
Phillips points out, “Trump escalated it.”
If Donald Trump’s rapid rise from tabloid fame to foulmouthed president teaches anything, it’s that politics
change, time moves forward, and what was previously
unimaginable can one day become the new normal. In the
Biblical story of Joshua’s attack on the walled city of Jericho,
it took patience and strategy, but finally “the wall fell down
flat, so that the people went up into the city.”1 With the right
mix of inspiration and organization, prison walls can come
tumbling down.
For years, lawyers and organizers have tried to fix
immigration prisons. Often, they have had some success.
When lawyers and family members complained that people
were getting lost inside ICE’s facilities, the agency created a
website to track the people in its custody. When advocates
complained that sexual assaults were rampant in ICE’s
network, Congress extended the Prison Rape Elimination
Act. Even President Trump has scaled back some of his
administration’s worst excesses. Public outcry over family
separations convinced him to bar Border Patrol officers from
sending parents for criminal prosecution and children to
child-only facilities under the pretense of needing to talk in
another jail cell.
And yet it remains extremely difficult for lawyers and
relatives to keep in touch with detainees, because ICE
moves them around the country without regard for whether
an hours-long flight is a realistic option for advocates and
family members. Rapes are banned, but survivors of sexual
violence still find legal roadblocks on the path to justice. In
one case, a federal court dismissed a lawsuit filed by eight
women who were raped by an immigration prison guard.
The guard had admitted his guilt in a separate criminal
prosecution, and ICE had violated an internal policy by
letting the guard escort the women alone, but that wasn’t
enough for the court. In the view of the conservative Fifth
Circuit Court of Appeals, violating a policy intended to avoid
sexual assault isn’t the same as showing that a “substantial
risk of serious harm exists.”2
Seeing only the harsh edge of an immigration policy that
has grown even harsher under President Trump can turn
even the most reasonable observer into a cynic. I prefer to
search for hope, to think of the Trump moment as an
opportunity to revisit assumptions. And no assumption is
harder to uproot than the hold that immigration prisons
have on people who make immigration policy and those who
contest it. Without escaping the immigration prison’s walls,
it might be impossible to escape the prison system’s racism
and mass commodification of human life.
Freedom for thousands of people considered too
dangerous or untrustworthy to live outside walls won’t
happen overnight. In a series of essays, Angela Davis put
forward a helpful way of thinking about a world with more
freedom and fewer prisons. Abolition, she says, isn’t just
about toppling what already exists. It has to be about
building up something else too. Abolition “involves reimagining institutions, ideas, and strategies, and creating
new institutions, ideas, and strategies that will render
prisons obsolete,” she argues.3 Without a constructive
component, the destructive part of abolition will leave a
gaping hole in the policy landscape. And that hole, we can
expect, will prove fertile ground for other forms of
exploitation to grow.
No better example exists about the risks of destructive
abolition than slavery’s aftermath. Even now, the centuriesold practice of turning humans into commodities stands
apart from other instances of cruelty. In his infamous
opinion in Dred Scott v. Sandford, the pre–Civil War case in
which the Supreme Court concluded that a black man could
not claim U.S. citizenship, Justice Roger Taney captured
slavery’s ethos: “[the black man] had no rights which the
white man was bound to respect.”4
In the eyes of the law,
black people were things to be bought, sold, and gifted,
raped and beaten, worked to exhaustion or death,
criminalized and killed. Black men were valued for their
ability to create wealth. Black women were prized for their
ability to make new things and, through childbirth, new
slaves. The law enabled social and racial control.
When that horrible institution collapsed in the flames of
the war-torn nation, there was reason for hope. Abolitionists
had long pushed for slavery’s demise to be paired with
meaningful reparations. They wanted to destroy the social
institution and upend the legal regime at the same time that
slavery’s winners made amends—real, concrete wealth
transfers—to their newly freed neighbors. For a moment,
dreams seemed like they might become reality.
And then hope gave way to the brutality of raw power.
Share-cropping reconfigured economic relations, but not the
racial order. Criminal prosecution gave legal cover to old
habits: controlling blacks’ movements through laws against
loitering, for example, and exploiting their physical labor.
Violence remained a favorite terror tactic.
Early in the twentieth century, W.E.B. DuBois pilloried the
course that abolition had taken. In his monumental The
Souls of Black Folk, DuBois wrote, “What did such a mockery
of freedom mean? Not a cent of money, not an inch of land,
not a mouthful of victuals,—not even ownership of the rags
on his back. Free!”5 To DuBois, abolishing slavery required
more than ending the legally permissible ownership of
human beings. To him, it meant rectifying the sin of profiting
from centuries of exploitation. It meant redistributing wealth
from the people who had taken it through the violent tip of a
cracking whip and giving it to the people whose hands had
actually tilled the soil. For abolition to become meaningful,
legal change couldn’t stand alone. Severing the literal
chains wasn’t enough. It needed to be accompanied by
changes to a culture built around white people’s exploitation
of black people. Simply, DuBois believed that a social
transformation was necessary. For that to happen, white
supremacy itself had to be uprooted. To his dismay,
exploitation in the form of slavery ended, but exploitation
did not. It just took a different form.
Reforming immigration prisons carries a similar Achilles’
heel. They are built, they expand, they evolve, they know no
failure. Angela Davis lobbed a similar critique at prison
reform, claiming “more frequently than not, these reforms
have ultimately solidified the institution.”6
In his history of
prisons, Discipline and Punish, French philosopher Michel
Foucault wrote, “Prison ‘reform’ is virtually contemporary
with the prison itself: it constitutes, as it were, its
programme.”7 From this perspective, efforts to reform
prisons entrench them further rather than threaten their
existence. Making immigration prisons nicer may drive
migrants’ confinement further into the United States’ legal
system, but more worryingly, trying to fix the worst parts of
immigration prisons risks turning the prisons that remain
into symbols of enlightened policymaking. To a United
Nations human-rights official, a converted nursing home in
Pennsylvania represents “best practices” in immigration
detention.8 To Diego Rivera Osorio, it’s where he learned to
Left to the slow churn of reform, prisons can morph into a
warped humanitarianism. The very word penitentiary
derives from the Latin word for repentance, paenitentia. Like
the early U.S. prisons, the theory underlying imprisonment
imagines a space in which moral deviants repent. By
seeking forgiveness, they can overcome the moral stain of
their transgressions and experience new life as morally
upstanding members of the community. Following this meand-my-God model, Philadelphia’s Eastern State
Penitentiary, for instance, was designed to allow for
maximum communion with God. Inmates were kept in oneperson cells from which they could see no one except the
guard. They could communicate with no one except their
jailer, their God, and their conscience. To the moral
reformers who backed this experiment in punitive social
redemption in the Quaker-influenced city, the new
penitentiary was a lost soul’s moral sanctuary. With the
body caged, the soul could be cradled.
But thought of another way, Eastern State was an
experience in punitive double-sidedness. Corporal
punishment ensured that inmates had no control over their
bodies. The crushing power of isolation ensured that they
didn’t have much more control over their minds. Traveling
across the United States in 1842, Charles Dickens stopped
in Philadelphia, where he marveled at the city’s hospital and
waterworks—“no less ornamental than useful,” he
concluded. Its new prison, however, dismayed Dickens. “I
hold this slow and daily tampering with the mysteries of the
brain, to be immeasurably worse than any torture of the
body,” he wrote. With singing prose, he went on to explain
the horror of being complicit in such cruelty. “I solemnly
declare, that with no rewards or honours could I walk a
happy man … with the consciousness that one human
creature, for any length of time, no matter what, lay
suffering this unknown punishment in his silent cell.”9
Immigration prisons have followed a similar confinementas-humanitarianism pattern. When Chinese migrants were
detained in the dockside warehouses, good-hearted
advocates criticized conditions inside, leading the federal
government to build its own facilities on San Francisco Bay’s
Angel Island, turning misery from temporary cruelty to
bricks-and-mortar permanency.
A similar story repeated itself a century later with the
Krome Avenue Detention Center. In 1980, the Carter
administration turned an old missile site near Miami into a
makeshift detention center for Cubans and Haitians. Living
conditions were bad all around, but for the southern portion
of the camp, where Haitians were housed, things were
outright deplorable. A lawyer for detained Haitians said
conditions were “atrocious.” “We do not consider those sites
fit for human habitation,” a spokesperson for the Florida
Department of Health added. “It is an intolerable situation.”
Soon federal officials invested in upgrades, transforming
this bit of South Florida swamp “into a more permanent
facility designed to discipline and to hold unwanted
refugees,” writes historian Jana K. Lipman.10
Writing about legal challenges to immigration detention
practices in the United States in the 1980s, historian Carl
Lindskoog describes this trend. After the Carter
administration suddenly began its hastily implemented, adhoc detention of Haitians, the detainees sued, claiming the
government had failed to follow required procedures for
shifting its policy. The INS responded by adopting a formal
detention policy.
11 When advocates complained to the
Reagan administration that the federal prison system was
over capacity largely because of too many Haitian and
Cuban migrants, administration officials asked Congress for
more money, and the INS responded by spreading its
detainees across nine hundred state and local jails.12 “Each
challenge led to the development of a more resilient legal,
political, and economic rationale for its existence,” notes
A similar pattern has repeated itself more recently. When
George W. Bush occupied the White House, ICE started
splitting parents who were caught alongside their children.
To Congress, it was outrageous that ICE would tread on the
sanctity of family life. In response, the immigration agency
recommissioned a former medium-security prison as a
stand-alone family prison called the Hutto Family Residential
Center. In the dry wit of the world’s leading researcher on
immigration prisons, Michael Flynn, “detaining families at
Hutto was apparently meant to protect an important right—
the right to family life.”14
Recently, we have seen more of the same. During the
summer of 2014, the Obama administration threw open a
family prison in Artesia, New Mexico. One of the first
attorneys to arrive there, Julia Braker, recalls surprise at the
number of sick migrants and blames living conditions. “It
seemed pretty intentionally created by the government,”
she told me. She had the impression that “it was supposed
to be miserable.” Later that year, the federal government
partnered with a private prison corporation to open a
permanent facility in rural Texas. The South Texas Family
Residential Center in Dilley, about an hour south of San
Antonio, is the largest families-only facility in the
government’s immigration prison arsenal.
Fast-forward to 2018, and the pattern repeats itself. In a
mean-spirited spat, the Trump administration began taking
children from their parents, prosecuting the adults
criminally, and sending kids to government-financed,
privately run “shelters” from which they can’t leave.
Government officials struggled to say how many families
they separated. Meanwhile, the Trump administration official
in charge of overseeing the child-only prisons fought all the
way to the Supreme Court to block girls from accessing
abortion services. When news broke of children being taken
from their parents—sometimes literally while the kids were
asleep in a mother’s arms, at other times through outright
lies—criticism came from every corner. Even Melania Trump
voiced her opposition. Eventually, the president ended that
practice, only to replace it with an effort to detain more
families together.
Government officials aren’t beyond blaming advocates
for prison expansion. Reagan’s attorney general, William
French Smith, claimed Haitians were confined longer than
other migrants because they insisted on speaking to
lawyers and filing asylum applications.15 Most shocking, at
one point in the mid-1990s, advocates for Haitian migrants
even lobbied the Clinton administration to reopen a
detention center at Guantánamo, Cuba, because that was
better than the government’s proposal of reviewing asylum
claims in Haiti or on board a navy ship.16
Clearly, prisons have become part of the psyche of
immigration law. Decades into its modern growth spurt,
immigration prisons have grown roots that keep the industry
thriving. End one contract, and another one will take its
place. This is what happened in Milan, New Mexico, when
BOP cut off a prison, only for it to be saved by ICE. It’s what
happened in Willacy County, Texas, when ICE pulled out and
BOP stepped in. Then BOP pulled out and ICE returned.
Without cutting off immigration prisons at their root, they
will continue to resurrect themselves. So long as the federal
government is committed to a security-first philosophy that
imagines migrants as dangerous outsiders—aliens—who
pose an existential threat to the nation itself, then it makes
all the sense in the world that it will turn to the power of
Legislators, lawyers, and even many activists have
bought into the need for prisons such that it is almost
impossible for anyone to think outside the box. Books are
constantly written about the problems with imprisonment
and lawsuits filed challenging prisons’ worst excesses, but in
the context of immigration, few people have asked the allimportant question: “Are prisons obsolete?” as Angela Davis
put it in 2003. Thinking about it another way, would
immigration law crumble if prisons ceased to exist?
We certainly don’t need prisons to enforce immigration
laws. During the early 1980s, when immigration
imprisonment was ramping up, opposition came from all
quarters. The Democratic governor of Florida led a state
lawsuit against the INS over conditions inside a Miami
facility. Far to the north, Republican congressman David
Martin helped derail plans to confine migrants at an army
base in his district near the Canadian border. The federal
government itself questioned whether the INS was up to the
task of confinement, concluding that an INS center “is not
an efficient long-term custody solution.”17
In his history of early prison profiteers, Malcolm Feeley
writes that it “was not always a foregone conclusion” that
prisons would be used to punish people for their
transgressions.18 For centuries before the United States split
away from the United Kingdom, English courts worked with
private shipping companies to remove serious offenders,
literally, by forcibly transporting them across the Atlantic. To
the Crown, this was a great deal. It punished offenders,
showed a strong willingness to fight crime, and cost very
little money: people could request transportation in lieu of
death, and they could pay for it themselves or indenture
themselves to a private shipping company. Most people are
aware that a version of this happened in Australia, but it
thrived along the eastern seaboard of North America longer
and earlier. Transportation to North America came to a rapid
halt with the colonial uprising that eventually led to U.S.
independence. Almost at once, “entrepreneurs,” as Feeley
calls them, pitched prisons as a cheap, effective way of
removing offenders from society.
And so punishment through mobility, through moving
offenders elsewhere, became punishment through
immobility, through putting them behind bars. Like in the
days before U.S. independence, migrants experienced legal
disapproval by being forcibly relocated. And like with the
beginnings of criminal imprisonment, migrants eventually
began to suffer that same disapproval through forced
I don’t pretend to have a step-by-step plan for getting from
a policy that imprisons half a million migrants annually to
one that ensnares zero. The radical activist group Mijente is
among the few organizations calling for the abolition “of all
forms of immigration detention,” but even they don’t
pretend to know how to navigate the politics of migration to
reach that goal.19 No one does, because no one can. If it
took seven days for the Old Testament Jews to fell the walls
of Jericho, surely it will take much longer for mere mortals to
tumble the walls of immigration prisons.
Reforms that merely reorganize and reproduce coercion
won’t get us any nearer to a world without immigration
prisons. It’s not enough to shift the bounds of who should be
locked up. The United States has tried that. When Congress
declared that anyone convicted of an aggravated felony
must be detained, they identified three serious crimes that
fall into this category. Now there are twenty-one types of
aggravated felonies.
Nor is it acceptable to support reforms that simply inject
some twists into the path toward confinement. ICE’s existing
alternatives to detention programs fall into this camp.
Though they have taken different forms over the years,
these initiatives always involve intrusive surveillance.
Typically, they also come with around-the-clock GPS
monitoring through clunky ankle bracelets that reek of
punishment. Fail to meet the monitoring requirements and a
migrant loses any chance at freedom. Worse, ICE uses these
programs as alternative ways of keeping tabs on people who
don’t need to be watched—people who are grounded in the
United States and are therefore unlikely to miss court dates,
and people who show no inkling of violence. These aren’t
people who would be detained and are now being allowed a
semblance of liberty. Instead, these are people who should
never have been detained in the first place. Treating ICE’s
alternatives to detention as a step up is only possible after
accepting the agency’s premise that everyone deserves
But some reforms can better approach an abolitionist
future. Reforms that reduce the immigration-law
enforcement system’s reach into migrants’ lives might help
end immigration imprisonment. For example, the United
States should disentangle ICE’s power to detain from the
criminal justice system. A racially biased, deeply flawed
criminal justice system that skews against poor people
shouldn’t be the foundation on which civil detention rests. It
wasn’t defensible at the turn of the twentieth century, when
dockside warehouses in San Francisco were dubbed
“Chinese jails,” and it’s not acceptable now. At the same
time, Congress should throw the federal crimes of illegal
entry and illegal reentry into the dustbin of legislative
history. What benefit has the United States received since
the Bush administration prioritized these sections of the
federal penal code?
If those seem far-fetched, then we can start by giving
every migrant a lawyer, whether they can pay for it or not,
then add other support like social workers, while handing
everyone a work permit so they can sustain themselves
while they raise their legal claims. The country’s first
initiative to provide lawyers for everyone held in a particular
immigration prison facing deportation, the New York
Immigrant Family Unity Project, led to a surge in the number
of people who were released. Once out of prison, almost
everyone showed up for court dates. During its first three
years, 10 of 611 Family Unity Project clients released from
prison failed to show up to court without the judge’s
permission. That’s a 98 percent success rate. Legal
representation also increased the odds that migrants would
win their court cases. Before getting a lawyer through the
program, 4 percent of migrants successfully fended off
removal. With the help of a lawyer, the number jumped to
42 percent.20
None of this is a surprise. Immigration prisoners aren’t
the wandering souls that politicians like to make them out to
be. Many have deep ties to the United States. One out of
three people held by ICE in the summer of 2018 had been in
the United States for at least one year. Almost 20 percent
had been here for at least ten years. People with the most
serious type of criminal records—who, by law, must be
locked up while waiting for the immigration courts to
process their cases—tend to have spent a long time in the
United States. According to one study, on average fifteen
In addition, when a legal process gives people a
meaningful opportunity to participate and takes their
concerns seriously, they comply. Known in the academic
literature as “procedural justice,” the idea boils down to
simple fairness. People can sniff out a sham legal process. If
the rules are stacked against someone, the outcome seems
rigged. But if everyone seems to be getting a fair deal, then
people will go with it, even if they don’t like the outcome.
Nuremberg prosecutor and Supreme Court Justice Robert
Jackson captured this concept at its most basic. “Severe
substantive laws can be endured if they are fairly and
impartially applied,” he wrote in a 1953 dissenting opinion.22
Emily Ryo, the legal scholar, is one of the few people to
seriously study this phenomenon in the immigration prison
context. Analyzing surveys of almost six hundred ICE
detainees, Ryo found “a significant relationship between
immigrant detainees’ fair treatment perceptions and their
perceived obligation to obey U.S. immigration authorities.”
Interestingly, this group of migrants was more committed to
following the law than what studies of people living freely in
the United States typically find.23 What this means for
immigration prisons is straightforward, even if it does fly in
the face of decades of bipartisan political rhetoric. If we
want migrants to show up for court dates, treat them fairly.
It’s really that simple. Prisons aren’t just unnecessary;
they’re counterproductive.
The government’s own experience proves this. Almost
since it returned to immigration imprisonment, it has been
experimenting with alternatives to confinement. While
President Reagan was still in office, the INS worked with the
migration arm of the United States Catholic Conference to
move into the community some of its most notorious
detainees, the Mariel Cubans made famous by Al Pacino’s
Scarface. For a dozen years from 1987 to 1999, the Catholic
group provided education, job training, substance abuse
treatment, and weekly meetings to fifty to sixty Cubans
annually. Three-quarters had no problems meeting the
program’s requirements.24 Overlapping with the Cuban
initiative, in 1997 the INS partnered with the Vera Institute
of Justice to run an intensive compliance-support pilot
program in the New York and New Jersey area. Instead of
confining migrants, the INS sent migrants selected for the
initiative to live with community sponsors. Once outside,
migrants were educated about the immigration court
process and the importance of complying with court orders,
kept up-to-date on court dates, and referred to legal
counsel.25 Eighty-five percent of participants in the Clintonera program kept showing up to court.26
These aren’t the only success stories. In the late 1990s,
the INS had on its hands people who had already been
ordered deported because of criminal records, but for whom
the government couldn’t get necessary travel documents. It
planned to deal with them by locking them up for however
long it took—indefinitely, if necessary. Catholic Charities
stepped in. From 1999 to 2000, it moved those people out of
prison. By the time he was tapped to participate, one man
had been in INS prisons for seven years. Once enrolled,
everyone got a place to live, information about program
expectations, and help with jobs. Of the first twenty-one
people to participate, twenty had no problems.27
Success stories like these aren’t ancient history. They
aren’t even the most recent examples. During the Obama
years, ICE partnered with Lutheran Immigration and
Refugee Services to provide ten migrant families with fullservice case management. The faith-based organization’s
staff helped the families find housing, educated migrants
about the legal process, and provided legal assistance. The
program was tiny. It was funded primarily by two private
foundations and was intended to show that robust case
management could compete with detention. The results
were remarkable, but not surprising. One hundred percent
of families did what immigration officials told them.28
What makes these programs worth talking about isn’t
just that they work, but that they work without intrusive law
enforcement–style oversight. Unlike prison life, none
required days behind steel doors and concertina wire. None
involved handing over cash to pay for release on bond.
Contrast that to standard practice in immigration courts,
where judges hand out bonds averaging as much as
$80,500.29 Most of the time, no one had an electronic
bracelet strapped to their ankle, but contrast that with ICE’s
willingness to use electronic bracelets on people with no
criminal records and with deep ties to the community. And
none of these initiatives relied simplistically on criminal
records to bar participation, a stark contrast to federal
judges who deny bond to immigration-crime defendants
more often than they do to people charged with any other
federal crime. Instead of superficial assumptions about
dangerous migrants who are all too willing to disappear into
the anonymous masses of migrant America, each initiative
used a straightforward cocktail of support to increase
compliance: individualized education and legal
representation combined with community collaboration.
These programs prove that it is possible to comply with
immigration requirements and enjoy the freedom most of us
take for granted.
For thirty years, the federal government has had at its
disposal meaningful options to ensure that migrants show
up to court and don’t endanger the community. Without
enlarging the number of people incarcerated or expanding
the government’s surveillance of people it wouldn’t
otherwise keep tabs on, these projects cost pennies to the
dollar compared to detention. But instead of pouring money
and ingenuity into them, it has always chosen to kill these
projects, instead prioritizing detention and alternatives to
detention that involve similarly heavy surveillance. Over
and over again, imprisonment has beat out freedom.
That we don’t already take these basic steps toward
injecting fairness into immigration proceedings and instead
rely on the easy claim that migrants are too unscrupulous to
merit liberty reveals immigration imprisonment for what it
truly is. It’s not a humane means of enforcing fair laws; it’s
an over-the-top reaction to a legal system designed to keep
migrants in their place at the bottom of a social hierarchy
that metes out favors and punishments according to race
and class. The more privileged you already are, the more
favored you will continue to be. Immigration prisons reveal
the ugly, generations-old politics of exploiting segments of
humanity. This isn’t the first time, and it seems unlikely to
be the last. But that doesn’t make it any better.
Perhaps surprisingly, the Supreme Court has pointed in the
direction of a more humane approach toward limiting
imprisonment. Governmental action that “treat[s] members
of the human race as nonhumans, as objects to be toyed
with and discarded,” the Court wrote in 1972, violate the
Constitution’s Cruel and Unusual Punishments Clause.30 This
principle, grounded in the Magna Carta, the famous
thirteenth-century English legal document, and crystallized
more clearly in the 1688 English Declaration of Rights, made
its way into the Constitution as a means of protecting the
“dignity of man.”31
“You should be treated with dignity,” David Rodriguez,
who spent two and a half months inside a Houston
immigration prison, insists. But what does it mean to treat
people as human beings filled with an innate dignity? Not
much, it would seem, given the state of imprisonment in the
United States. In a series of lawsuits, people locked up in
California’s notoriously overcrowded, dangerous, and
generally heinous prisons attempted to revive the moribund
Cruel and Unusual Punishments Clause by arguing that they
deserved a measure of dignity even as they atoned for their
crimes. To their credit, the courts displayed a sympathetic
ear and drew a line in the margins of acceptable
imprisonment where no line had seemed to exist. Convicted
offenders cannot be denied “life’s necessities,” concluded a
specially impaneled three-judge trial court.32 On appeal two
years later, the Supreme Court added, “Prisoners retain the
essence of human dignity inherent in all persons.”33 The
specific problem of prison overcrowding that the Court
addressed is fairly narrow, but the underlying
dehumanization of prisoners is much broader.
For that reason, the Court’s recognition that people don’t
stop being people when they find themselves behind bars is
momentous. In breathing a sliver of life into the
Constitution’s dignity principle, the justices acknowledged
that legal procedures can make life miserable, but they
shouldn’t be allowed to override the basic elements of
human existence. In those legal decisions, courts, including
the U.S. Supreme Court, declared that the acts that led
people into prison are insufficient justification to deny them
basic components of a dignified life. They can be
imprisoned, but they can’t be denied their humanity.
The twentieth-century philosopher Hannah Arendt would
have agreed. A German Jew who survived Nazism by fleeing
first to Paris, then to New York, Arendt’s 1951 intellectual
tour de force, The Origins of Totalitarianism, continues to set
the standard for critiques of despotism’s dangers. Rightly
so, her focus was on Europeans who had been stripped of
their citizenship before being stripped of their lives by Nazi
forces and their allies. In writing broadly about
totalitarianism, she highlighted the mundane features of
systematized dehumanization. People stripped of law’s
protections were converted into “the scum of the earth,”
she wrote.34 But she also described the law’s potential to
resurrect. “The same man who was in jail yesterday because
of his mere presence in the world, who had no rights
whatsoever and lived under threat of deportation … may
become a full-fledged citizen because of a little theft,” she
added. “He is no longer the scum of the earth but important
enough to be informed of all the details of the law under
which he will be tried. He has become a respectable
person.”35 So long as the law continues acknowledging a
person’s legitimate role in the community, she seemed to
be saying, it will recognize the person’s humanity. When the
first ends, so too does the second.
Alone, neither federal courts’ tepid embrace of human
dignity nor Arendt’s trenchant analysis is enough to end
immigration imprisonment. Prisons in the United States
remain teeming with people. But legal challenges to
horrendous conditions inside California prisons provide a
helpful example from which to resist immigration
imprisonment by insisting on respect for migrants’ inherent
humanity. A politically charged sense of dignity must be at
the core of that struggle. It is not enough to ask that
immigration prisoners not be killed, starved, physically
abused, or sexually assaulted. The Supreme Court’s
embrace of dignity is helpful, but too limited. Indeed, it must
be because of the limitations inherent in legal proceedings.
Courts of law are good venues for demanding that we treat
each other according to the norms we have already agreed
upon, but they are not particularly good venues for
improving the conduct we demand of each other.
Instead, we should dream. Allison Crennen-Dunlap has
summarized trends in Supreme Court decisions that enlarge
the power of federal officials to detain migrants by reducing
the oversight role that immigration judges play. According to
her, “it seems then that the range of rights once thought
possible for noncitizens has narrowed. Might the time be
ripe to ask some bigger questions?”36
In simply asking the
question, Crennen-Dunlap answered it. The scale of the
nation’s immigration prison system continuously grows. The
conditions of confinement seem impossible to improve. The
faces of prisoners grow younger and more vulnerable. For all
their differences, Democrats and Republicans regularly
agree to support immigration prison practices. Instead of
continuing to beat around the bush, it is important to inject
into immigration conversations a more fundamental line of
attack: it is time to abolish immigration prisons.
To deny some people core features of human existence
simply because they lack governmental authorizations to
cross certain lines marked on maps, lines that from time to
time move or disappear, is to deny migrants their ability to
realize their humanity. Forcing migrants to live under the
constant threat of imprisonment tied to their immigration
status means treating them as if they are workers and
threats before they are people. “It’s unreal the lengths
they’ll go to dehumanize,” David Rodriguez told me,
reflecting on his experience at the Houston immigration
prison. To derail treatment of migrants as scum, as
disposable, advocates need to insist that a dignified life
includes the right to live with one’s family, to flee danger,
and work to sustain oneself. Legal battles can be a helpful
adjunct, but ultimately this is a political fight about the
future that is grounded in the past.
Throughout all this, somehow migrants and their families
are expected to weather the storms of strong-armed
policing. As if through superhuman powers, they are to put
aside the trauma of imprisonment, the practical obstacles of
being uprooted from their lives and their jobs. They are
supposed to be exceptional human beings. We need to stop
demanding that migrants be exceptional and instead
embrace their ordinariness. Today’s migrants are doing what
people have done for millennia: moving from place to place
in search of comfort, safety, adventure—all that makes life
worth living. Indeed, in search of life itself. In the Christian
tradition, trekking across the Earth begins with Adam and
Eve’s fall from grace. In Islam, it started with Muhammed’s
search for safety. In Judaism, it is central to the Jewish
people’s survival.
People don’t wake up one morning and simply decide
they will leave their homes, families, and communities.
Leaving the place where people know you and you know
others is never easy. This is as true for people living in
poverty as it is for people suffering from violence. On their
own, push factors like these, as scholars call reasons to
leave, are rarely enough to get up and go. If they were, then
everyone living near a richer destination would set off. And
yet most Guatemalans don’t head to Mexico, and most
Mexicans don’t head to the United States. The same goes
for the United States, where there are few legal hurdles to
state-to-state migration. Colorado, where I live, has the
eighth best employment record in the country. Our southern
neighbor, New Mexico, has the sixth worst. If money were
sufficient reason to convince most people to move, we could
expect an exodus north, but we don’t see that. Like most
people, most New Mexicans stay put.
Often, we think of migrants as foreign people who are
coming to what is, for them, a foreign place. “They came
into a strange land,” the New York Times wrote in its 1954
celebration of Ellis Island’s last day as a detention center.
Unfamiliarity retains a powerful place in our collective
imagination of migrants. But for many people, coming to the
United States doesn’t mean arriving unmoored. People
come to the United States for specific reasons. Just like
people are pushed away from home by unique factors, they
are pulled toward their new home by preexisting
relationships. The sociologist Saskia Sassen captured this
idea brilliantly when she wrote that “migrations do not
simply happen. They are produced. And migrations do not
involve just any possible combination of countries. They are
In other words, migrants don’t head to the
United States randomly. They come here because it is a
stable country with good job prospects and deep ties to key
parts of the world. Around the United States, there are
large, thriving communities of migrants from China, India,
the Philippines, Mexico, and Central America. In places like
California and Texas, this has been true for generations. In
the new migrant destinations of the South and Midwest,
migration has been commonplace for less time, but by now
it is part of the lifeblood of many communities that have
seen hard times. These are the ties that bind the United
States to the rest of the world, and they are firm. In
bilingual, bicultural, binational people like me, they are
made real.
Over and over again, government officials ignore the
overwhelming human desire of people to improve their lot.
During the summer of 2014, the government of El Salvador
distributed a flashy cartoon called “El cuento del coyote”
(“The Smuggler’s Tale”), in which a stereotypical bad guy—
curved nose, sharpened teeth, and grimy clothes—locks
children in a cage while a boy’s voice talks about being sold
by a smuggler. “Protecting our children is our responsibility,”
a grandmotherly type admonishes.38 Funded by the United
States, the International Organization for Migration, and
UNICEF, the cartoon apparently didn’t make much of a dent,
because families and children keep coming. And the United
States keeps trying to scare them away. Four years after the
failed cartoon nightmare was released, Kevin McAleenan,
then the director of Customs and Border Protection, visited
Guatemala to tout Trump administration efforts “to provide
accurate information so they won’t make this dangerous
journey, where they face physical and sexual assault,”
according to news reports.39
The anti-smuggling video and McAleenan’s comments
suggest migrants don’t know the risks of the journey north.
In reality, migrants are simply responding to a greater
desire to see their loved ones and make a safe life for
themselves and their families—to live. Legal scholar Jennifer
Chacón vividly captured the immense power that the
reasons for migration have and the limited sway that
imprisonment offers. “Would-be migrants who are
undeterred by the very real and well-known threats of
robbery, serious violence, rape, sexual assault, and death in
the desert in the course of northward migration seem likely
to give very little weight to the possibility of criminal
sanctions when deciding to undertake the journey.”40 The
evidence backs her up. In one survey of over six hundred
Mexican migrants, a mere fifty-five said law enforcement
efforts deterred them from coming. In another, Central
American migrants came even though roughly 80 percent
were apprehended by immigration officials at some point.
People coming to reunite with family or in search of better
job prospects are most likely to come no matter what
obstacles government officials throw their way.
Migrants are ordinary in another way. Like all of us, migrants
mess up. On average, they commit less crime than do those
of us born in the United States. Along the Southwest border,
counties with large migrant populations “have significantly
lower levels of lethal violence than non-border counties,”
the criminologist Jacob Stowell and his colleagues found.42
The same goes for property crime.43
It’s true of Haitians in
Miami, Asians in San Diego, and Mexicans in Chicago.
President Trump can bluster all he wants about gangs of
migrants terrorizing our neighborhoods, but if what we want
is safer cities and towns, we should recruit migrants. But
less crime doesn’t mean no crime. Some migrants steal, and
others hurt people. Denying that reality is to hold migrants
to an impossibly high bar. Politically, it’s also a losing
strategy. Pointing to exceptionally talented and saintly
migrants as a model is a recipe for lumping mere mortals—
that’s most of us—into the category of undesirable arrivals.
Let’s stop sanctifying migrants and embrace the profound
ordinariness that makes migrants, like citizens, human.
We also need to stop pretending that crime is a good
indicator of moral worth. Having spent most of my adult life
on college campuses, I am constantly reminded that we
have all done things that are nothing worse than
embarrassing and other things that are far worse.
Sometimes regret begins to set in at the very moment, but
we can’t stop ourselves. On occasion, our transgressions
cross the line from a moral failing to a crime. The stain of a
criminal conviction doesn’t make some people worse than
people who have moved through life without a blemish.
Often, criminal investigation, prosecution, and conviction
reflect dumb luck or the indefensible bias of the U.S.
criminal justice system.
Besides, the criminal justice system doesn’t pretend to
overlap perfectly with criminal activity. Most people who
commit a crime in the United States aren’t convicted. In
fact, most violent crime and property crime isn’t even
reported to the police.45 When police do get a call, they are
not required to investigate every allegation, even if it’s
credible. They simply don’t have the money to chase down
every possible criminal. And when they do investigate,
prosecutors don’t have to turn to the courts for justice. They
can define justice however they like. If that means trying to
convict someone, so be it. If it means not trying, that’s fine
too. “A prosecutor,” the Supreme Court wrote in 1982, has
“broad discretion … to determine the societal interest in
It might have clarified: “in prosecution or
When a prosecutor does go after someone, a conviction
might have little to do with what the person actually did.
First, plenty of innocent people are convicted. Thousands of
people have had their convictions overturned, often thanks
to belated use of DNA evidence. There is reason to believe
that many more people have been wrongly convicted, but
the courts are unfriendly toward claims of innocence. As
Justice Antonin Scalia put it with the bitterness that was his
trademark, “This Court has never held that the Constitution
forbids the execution of a convicted defendant who has had
a full and fair trial but is later able to convince a habeas
court that he is ‘actually’ innocent.”47 Second, almost no
one is convicted by trial. Nine out of ten people convicted
admit their guilt through the “horse trading” process of
negotiating pleas.48 Often, people plead guilty because the
risk of challenging the prosecutor is so high. Prosecutors
routinely charge people with multiple crimes. The possibility
of long prison stints gives defendants an incentive to admit
their guilt to something less than what the prosecutor has
charged—even if that means accepting punishment for
something they didn’t do.
Testifying before the Senate Judiciary Committee as his
nomination to the Supreme Court teetered, Brett Kavanaugh
defended himself against sexual assault allegations by
saying, “all of us have probably done things we look back on
in high school and regret or cringe a bit.”49 Cecilia Equihua
would likely agree. She remembers her father, Francisco,
who was held in multiple immigration prisons, as dedicated
to his two daughters, but she doesn’t deny that he let his
garage be turned into a meth lab. Houston chef David
Rodriguez doesn’t deny that he hit two men with a baseball
bat. Jerry Armijo doesn’t deny falling into drugs when he
returned from Iraq. And if he could understand the question,
Diego Rivera Osorio, the little boy who turned three inside
the Berks Family Residential Center in Pennsylvania, would
probably admit that he and his mom didn’t have the right
stamps in their passports. As Kavanaugh suggested, most of
us have some skeleton tucked into our past.
For people of color, especially those who aren’t able to
escape into the increased safety that wealth brings, the low
points of our lives frequently become sticking points. Take a
single week in September 2018, when President Trump’s
Justice Department issued a decision ratcheting up the
immigration consequences of obstructing justice. This is an
“aggravated felony,” and, like all aggravated felonies, an
obstruction of justice conviction brings mandatory
imprisonment followed by almost-certain deportation.50 That
same week Trump’s former campaign chairman Paul
Manafort walked into a federal courthouse and pled guilty to
obstruction of justice. For migrants, obstruction of justice
comes with prison time, then mandatory detention by ICE,
and finally deportation—all while an executive order signed
by President Trump declares their presence in the United
States “contrary to the national interest.” For Manafort,
obstruction of justice came with prison time and a
supportive tweet from the president. If you are a wellplaced, wealthy white man who lies to the FBI, you are a
good guy who got nabbed by an overzealous Washington
establishment. If you are an ordinary migrant, you are a
danger to the richest, most powerful country on earth.
With luck and privilege playing such important roles in
determining who gets convicted of a crime, it makes no
sense to use criminal records to decide who is morally
upstanding and who is not. The bottom line is that we are a
mixed bag. Ending this double standard isn’t as simple as
ejecting President Trump from the White House. Congress
and presidents from both major political parties have been
tarring migrants for decades and supporting imprisonment
as a catch-all response. When Ellen Knauff was forced to
stay on Ellis Island, the Supreme Court said she was
enjoying “temporary harborage” there. Three-quarters of a
century later, the courts haven’t budged. Immigration
prisons have never been more widespread. If that is going
to change, it won’t be because the law demands it. It will be
because people demand it.
With support from Washington to Willacy County, it seems
that the future is bright for immigration prisons. In the days
after Trump’s election, private prison stock skyrocketed,
suggesting that it is a good time to be in the business of
locking up migrants. As a nation, our collective moral
compass has swerved to the point that we no longer debate
whether we should lock up children. Instead, detaining
children with their mothers is offered as the humanitarian
response to taking children from their parents. The
nightmare of confining kids is now the official policy of the
U.S. government. When that is our reality, then imaginations
have already run wild.
If nightmares can become reality, why can’t dreams?
Instead of an immigration-law enforcement strategy afraid
that migrants will pour into our churches and schools, onto
our streets and our playgrounds, I imagine a different future.
I imagine a future that looks more like United States history
than United States present. I imagine a future in which
immigration prisons do not exist. This is a long, winding
road, and I do not pretend to have all the answers that could
get us from here to there.
But I do know that the story of immigration prisons isn’t a
story about the righteousness of law. It’s a story about
politics. Politics always matters, but when it comes to
immigration prisons, politics are everywhere. Combatting
immigration prisons requires tackling politics with politics.
It’s past time to push back against the decades-old
bipartisan politics of fear with a politics of creative,
impassioned courage: courage to discard what we in the
United States do for what we should do. Whether blue-state
Democrats or red-state Republicans, politicians support
immigration prisons. They fan fears of migrants roaming the
streets under the cloak of nighttime darkness. Migrants join
gangs, President Obama said. Migrants behead, President
Trump added. There is a little bit of truth and a ton of
sensationalism in both fear-laced remarks.
Countering the dehumanizing spirit of the bipartisan
embrace of immigration prisons needs to begin with a
wholesale embrace of the imperfect humanity of migrants.
Migrants are superheroes, I tell my students when they ask
why Superman often appears in problems I have them work
on in class. The most American of aliens definitely didn’t ask
the government’s permission to crash into a Kansas farm
before growing into a one-man paramilitary force with a
penchant for violence. But migrants also commit crimes,
cheat on their spouses, get mired in poverty, and lie about
it. Migrants aren’t imperfect because they aren’t citizens.
Migrants are imperfect because they are people. Just
Any political alliance with migrants requires embracing
all of this. Not out of celebration for all that migrants do for
citizens. Not because migrants boost our economy, pick our
crops, clean our offices, care for our young, or energize our
culture. We should embrace the imperfect humanity of
migrants to celebrate that we are all strange creatures:
migrants and citizens alike. “The point is … not to recognize
ourselves in strangers, not to gloat in the comforting falsity
that ‘they are like us’, but to recognize a stranger in
ourselves,” urges the philosopher Slavoj ŽiŽek. Why?
Because “we are all, in our own way, strange lunatics.”1
Migrants aren’t stunted versions of people like me born
into my citizenship. They’re not just people standing along
the route that I traveled in utero. In this moment, in the
context of one nation, I am the citizen, and others are not.
But in another moment, things change. I am a U.S. citizen
only because my mother migrated so that I wouldn’t have
to. And in another context, they change again. When I am
not in the United States, I am the migrant, and others are
the citizens. Whether we know it or not, whether we admit it
or not, “we are all becoming migrants.”2 For that profoundly
ordinary fact of human existence, none of us deserve to see
the inside of a prison.
This project would not have been possible without the
immense assistance of many individuals. Some are
mentioned in the text. Most are not for there are simply too
many people upon whom my work builds.
My professional home at the University of Denver has
provided me with expansive intellectual and financial
support to carry this book from an idea to the finished
product before you. Thanks to the generosity of the
University of Denver Office of the Associate Provost for
Research, the Hughes-Rudd Research and Development
Committee, and the College of Law, I was able to conduct
the research needed to bring this book to life. My students
have been invaluable inspirations as they challenged me to
think deeper and clearer about immigration prisons. I am
especially indebted to Allison Crennen-Dunlap, the first
person to read a complete draft of this manuscript and the
last to go easy on me about any oversights.
Along the way, I have spoken with activists, advocates,
and academics who have sharpened my understanding of
the role that prisons occupy in modern-day immigration
policing. Lauren Dasse fights in Arizona; Adriel Orozco,
Emma Kahn, and Arifa Raza in New Mexico; Cecilia Equihua
in Los Angeles; Julia Braker in Oregon; and Sharon Phillips in
New York. Ming Chen and Elizabeth Escobedo kindly allowed
me to share parts of this project with their students.
Meanwhile, my brothers, Raúl and Carlos, have been my
immigration-lawyer guides at our family law firm, García &
García Attorneys at Law.
Without my colleague and partner, Margaret, I would not
have had the time or energy for this book. For that, I am
forever indebted.
1. Anthony Orozco, Attorney Hails Mother and Son’s Release from Berks
County Residential Center, Reading Eagle (August 11, 2017),; Laura Benshoff, Judge Frees Mom,
Toddler from Berks Immigrant Detention Center After 22 Months, WHYY (August
8, 2017),
2. Osorio-Martinez v. Attorney General, 893 F.3d 153, 178 (3d Cir. 2018).
3. Edafe Okporo, Bed 26: A Memoir of an African Man’s Asylum in the United
States 14, 19 (2018).
4. Admin. Office of the U.S. Courts, Federal Judicial Business, Fiscal Year
2018, U.S. District Courts-Petty Offense Defendants Disposed of, by U.S.
Magistrate Judges, by Nature of Offense, During the 12-Month Period Ending
September 30, 2018, 1 tbl.M-2 (2019),;
Admin. Office of the U.S. Courts, Federal Judicial Business, Fiscal Year 2018, U.S.
District Courts-Criminal Defendants Disposed of, by Type of Disposition and
Offense, During the 12-Month Period Ending September 30, 2018, 3 tbl.D-4
5. Cecilia Equihua, My Father’s Story—and Why Congress Should Listen,
Huffington Post (October 16, 2015),
6. Judith A. Greene et al., Indefensible: A Decade of Mass Incarceration of
Migrants Prosecuted for Crossing the Border 129 (2016).
7. U.S. Immigr. & Naturalization Serv., 1996 Statistical Yearbook of the
Immigr. and Naturalization Serv. 175 tbl.60, 183 tbl.65 (1997).
8. Admin. Office of the U.S. Courts, 1978 Ann. Rep. of the Director for the
Twelve-Month Period Ending June 30, 1978, at 121 tbl.54 (n.d.).
9. Admin. Office of the U.S. Courts, Judicial Bus. 1997 Ann. Rep. 188 tbl.D-2.
10. César Cuauhtémoc García Hernández, Pretrial Immigration Prisoner
Trends, Part I, (September 15, 2016, 4:00 AM),
11. César Cuauhtémoc García Hernández, Immigration Prison Population
Since 1990s, (September 19, 2017, 4:00 AM),
12. Mark Dow, American Gulag: Inside U.S. Immigration Prisons 8 (2004).
13. Asa Hutchinson, Keynote Address, 59 Admin. L. Rev. 533, 541 (2007).
14. Alexandra La Golosa, About Eloy, (October 18, 2016),
15. Guillermo Cantor, Hieleras (Iceboxes) in the Rio Grande Valley Sector:
Lengthy Detention, Deplorable Conditions, and Abuse in CBP Holding Cells 15
16. Press Release, ICE, Denver-area ICE Detainee Passes Away at Local
Hospital (December 4, 2017),
17. Letter from Jared Polis, Member of Congress, to Thomas Homan, Acting
Director, ICE 2 (June 20, 2018),
18. Memorandum from Jennifer M. Fenton, Assistant Director, Immigration
and Customs Enforcement, to Matthew Albence, Executive Associate Director,
Enforcement and Removal Operations, Findings—Death of ICE Detainee Kamyar
Samimi 2 (May 22, 2018).
19. O’lone v. Estate of Shabazz, 482 U.S. 342, 354 (1987) (Brennan, J.,
20. U.S. Dep’t of Homeland Security, Homeland Security Advisory Council,
Rep. of the Subcommittee on Privatized Immigration Detention Facilities 6 tbl.1
21. Erik Larson, Captive Company, Inc. Magazine (June 1, 1988), at 87, 88.
22. Krsna Avila et al., Immigrant Legal Resource Center, The Rise of
Sanctuary: Getting Local Officers Out of the Business of Deportations in the
Trump Era 9 (2018).
23. Molly Smith, Family of Veteran Detained by ICE Pleads for his Release, The
Monitor (February 26, 2019).
1: Laying the Groundwork
1. Gerald L. Neuman, The Lost Century of American Immigration Law (1776–
1875), 93 Colum. L. Rev. 1833, 1842 (1993).
2. Id. at 1850–51 (discussing Smith v. City of Boston, 48 U.S. 283 (1849)).
3. Id. at 1866–69.
4. David Scott FitzGerald and David Cook-Martín, Culling the Masses: The
Democratic Origins of Racist Immigration Policy in the Americas 90–91 (2014).
5. Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s
Chinatown 20, 25 (2001).
6. Id. at 35.
7. Charles J. McClain, In Search of Equality: The Chinese Struggle Against
Discrimination in Nineteenth-Century America 12–28 (1994).
8. Erika Lee, At America’s Gates: Chinese Immigration During the Exclusion
Era, 1882–1943, at 39 (2003).
9. Mary Roberts Coolidge, Chinese Immigration 283 (1909) (divinity
student); Torrie Hester, Deportation: The Origins of U.S. Policy 67–68 (2017)
10. 26 Stat. 1084, ch. 551, § 11 (1891).
11. Robert Eric Barde, Immigration at the Golden Gate: Passenger Ships,
Exclusion and Angel Island 70 (2008).
12. Coolidge, supra note 9, at 299.
13. Roger Daniels, No Lamps Were Lit for Them: Angel Island and the
Historiography of Asian American Immigration, 17 J. Am. Ethnic History 3, 4
14. Coolidge, supra note 9, at 300.
15. Id.
16. Barde, supra note 11, at 70.
17. Id. at 71.
18. Coolidge, supra note 9, at 321.
19. Daniel Wilsher, Immigration Detention: Law, History, Politics 12 (2012).
20. Act of March 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085.
21. Act of March 3, 1893, ch. 206, § 5, 27 Stat. 569, 570.
22. Hubert Howe Bancroft, History of California, vol. 7, 1860–1890, at 336–37
23. Robert Barde & Gustavo J. Bobonis, Detention at Angel Island: First
Empirical Evidence, 30 Soc. Sci. History 103, 107 tbl.1 (2006).
24. Barde and Bobonis, supra note 23, at 109 tbl.2 (reporting 5,605 arrivals
to Angel Island in 1913); Dep’t of Commerce, U.S. Census Bureau, Stat. Abstract
of the United States, 1919, 103 tbl.72 (1920) (reporting 14,844 arrivals at the
San Francisco port of entry in 1913, including 8,935 non–United States citizens).
25. Barde and Bobonis, supra note 23, at 109 tbl.2.
26. Id. at 121, 124.
27. Robert Barde, An Alleged Wife: One Immigrant in the Chinese Exclusion
Era, 36 Prologue 24 (2004).
28. Daniels, supra note 13, at 5.
29. Wilsher, supra note 19, at 16; National Park Service, U.S. Immigration
Statistics: Immigration Station at Ellis Island, NY,
30. Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court,
and Free Speech 10 (1987).
31. Elizabeth Hull, Without Justice for All: The Constitutional Rights of Aliens
18 (1985).
32. Patrick Ettinger, Imaginary Lines: Border Enforcement and the Origins of
Undocumented Immigration, 1882–1930, at 147 (2009).
33. Daniel Kanstroom, Deportation Nation: Outsiders in American History
149–50 (2007).
34. Emma Goldman, Living My Life, Vol. II 717 (Dover ed. 1970) (1931).
35. Christian G. Fritz, A Nineteenth Century “Habeas Corpus Mill”: The
Chinese Before the Federal Courts in California, 32 Am. J. L. Hist. 347, 348
36. Id. at 368.
37. Wong Wing v. United States, 163 U.S. 228, 235 (1896).
38. Knauff v. Shaugnessy, 338 U.S. 537, 550 (1950) (Jackson, J., dissenting).
39. Ellen Raphael Knauff, The Ellen Knauff Story 9 (1952).
40. Mark Dow, American Gulag: Inside U.S. Immigration Prisons 6 (2004).
41. Knauff, 338 U.S. at 539–40 (majority opinion).
42. Id. at 544.
43. See, e.g., Castro v. DHS, 835 F.3d 422, 443 (3d Cir. 2016).
44. Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons
from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 958 &
nn.123–26 (1995).
45. Matter of Ellen Raphael Knauff, A-6937471 (BIA Aug. 29, 1951)
(unpublished), reprinted in Ellen Raphael Knauff, The Ellen Knauff Story app.16,
at 245 (1952).
46. Shaugnessy v. Mezei, 345 U.S. 206, 208 (1953).
47. Id. at 213.
48. Id. at 220 (Jackson, J., dissenting).
49. Id.
50. Id. at 226.
51. Carlson v. Landon, 342 U.S. 524, 538 (1952).
52. Rana Mitter, Forgotten Ally: China’s World War II, 1937–1945, at 5 (2013).
53. FitzGerald & Cook-Martín, supra note 4, at 29.
54. Bill Ong Hing, The Immigration Act of 1952, in Anti-Immigration in the
United States: A Historical Encyclopedia, Vol. 1, at 791, 792 (Kathleen R. Arnold
ed., 2011).
55. Henry N. Rosenfield, The Prospects for Immigration Amendments, 21 Law
& Contemp. Probs. 401, 405 (1956).
56. FitzGerald & Cook-Martín, supra note 4, at 29.
2: On the Prison’s Edge
1. Benjamin Heber Johnson, Revolution in Texas: How a Forgotten Rebellion
and Its Bloody Suppression Turned Mexicans into Americans 119 (2005).
2. William D. Carrigan & Clive Webb, The Lynching of Persons of Mexican
Origin or Descent in the United States, 1848 to 1928, 37 J. of Soc. Hist. 411,
413–14 (2003).
3. Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44
Harv. C.R.-C.L. L. Rev. 297, 299–300 (2009).
4. Carrigan & Webb, supra note 2, at 418.
5. Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern
America 143 (2004).
6. Manuel García y Griego, The Importation of Mexican Contract Laborers to
the United States, 1942–1964, in Between Two Worlds: Mexican Immigrants in
the United States 45, 61 (David G. Gutiérrez ed., 1996).
7. Cybelle Fox, Three Worlds of Relief: Race, Immigration, and the American
Welfare State from the Progressive Era to the New Deal 243 (2012).
8. John D. Gould, European Inter-Continental Emigration: The Road Home:
Return Migration from the U.S.A., 9 J. of European Econ. History 41, 57 tbl. 2
9. Ngai, supra note 5, at 262 & n.120.
10. Id. at 261 (2004).
11. Arthur C. Helton, The Legality of Detaining Refugees in the United States,
14 NYU Rev. L. & Soc. Change 353, 355 (1986).
12. Mark Dow, American Gulag: Inside U.S. Immigration Prisons 7 (2004).
13. Ellis Island Ends Alien Processing, New York Times, November 13, 1954, at
14. Note, Wetbacks: Can the States Act to Curb Illegal Entry?, 6 Stan. L. Rev.
287, 287 (1954).
15. Kelly Lytle Hernández, The Crimes and Consequences of Illegal
Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954,
37 Western Hist. Q. 421, 441–42 (2006).
16. Gilbert Paul Carrasco, Latinos in the United States: Invitation and Exile, in
Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the
United States 190, 197 (Juan F. Perea ed., 1997).
17. Hernández, supra note 15, at 443.
18. Carrasco, supra note 16, at 107.
19. Ellis Island Ends Alien Processing, New York Times (November 13, 1954),
at 20.
20. Philip L. Martin, Promise Unfulfilled: Unions, Immigration, and the Farm
Workers 48 (2003).
21. Joseph Nevins, Operation Gatekeeper and Beyond: The War on “Illegals”
and the Remaking of the U.S.-Mexico Boundary app. F, at 227 (2001).
22. INS v. Delgado, 466 U.S. 210, 218 (1984).
23. Id. at 218, 219.
24. INS v. Lopez-Mendoza, 468 U.S. 1032, 1035 (1984).
25. Id.
26. Id. at 1040.
27. Id. at 1050.
28. Matthew Garcia & Mario Sifuentez, The Foundations of Modern Farm
Worker Unionism: From UFW to PCUN, in Labor Rising: The Past and Future of
Working People in America 253, 255–56 (Richard A. Greenwald & Daniel Katz
eds., 2012).
3: The Resurgence of Immigration Prisons
1. A Nation Without Prisons: Alternatives to Incarceration 4–5 (Calvert R.
Dodge ed., 1975).
2. Milton G. Rector, Introduction to A Nation Without Prisons: Alternatives to
Incarceration xvii, xvii (Calvert R. Dodge ed., 1975).
3. Corrs. Task Force, Nat’l Advisory Comm’n on Criminal Justice Standards
and Goals, Major Institutions, in A Nation Without Prisons: Alternatives to
Incarceration 3, 22 (Calvert R. Dodge ed., 1975).
4. Loïc Wacquant, Prisons of Poverty 135 (expanded ed. 2009).
5. Angela Y. Davis, Are Prisons Obsolete? 10 (2003).
6. Dan Baum, Legalize It All: How to Win the War on Drugs, Harper’s (April
7. Katherine Beckett, Making Crime Pay: Law and Order in Contemporary
American Politics 23, 55, 62 (1997).
8. David J. Garland, The Culture of Control: Crime and Social Order in
Contemporary Society 10, 136, 154 (2001).
9. C-SPAN, 1996: Hillary Clinton on “Superpredators,” YouTube (February 25,
10. Jonathan Simon, Governing Through Crime: How the War on Crime
Transformed American Democracy and Created a Culture of Fear 76 (2007).
11. George J. Kelling & James Q. Wilson, Broken Windows: The Police and
Neighborhood Safety, Atlantic Monthly, March 1982, at 29.
12. Simon, supra note 10, at 129–30.
13. 133 Cong. Rec. 28,840 (1987) (statement of Rep. Smith).
14. Stephanie J. Silverman, Immigration Detention in America: A History of Its
Expansion and a Study of Its Significance 10 (Univ. of Oxford, Working Paper No.
80, 2010).
15. Jenna M. Loyd & Alison Mountz, Boats, Borders, and Bases: Race, the Cold
War, and the Rise of Migration Detention in the United States 92–93, 98 (2018).
16. William M. LeoGrande, Our Own Backyard: The United States in Central
America, 1977–1992, 448 (1998).
17. American Baptist Churches v. Meese, 712 F. Supp. 756, 765 (N.D. Cal.
18. Oscar Martinez et al., Tin-Cup Gangs of El Salvador, New York Times, at
A1 (November 20, 2016); U.S. Dep’t of Homeland Security, Immigration and
Customs Enforcement, Treasury Department, HIS Sanction Significant Members
of MS-13 Gang, (June 4, 2013).
19. David Bacon, Illegal People: How Globalization Creates Migration and
Criminalizes Migrants 60–64 (2008).
20. Joseph Nevins, Operation Gatekeeper and Beyond: The War on “Illegals”
and the Remaking of the U.S.-Mexico Boundary app. F, at 227 (2001).
21. Pima County Office of the Medical Examiner, Annual Report 2016, at 31,
22. Douglas Massey et al., Why Border Enforcement Backfired, 121 Am. J.
Soc. 1557, 1557–58, 1578, 1588 (2016).
23. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151–52 (2002).
24. Massey et al., supra note 22, at 1581; Julie A. Phillips & Douglas S.
Massey, The New Labor Market: Immigrants and Wages After IRCA, 36
Demography 233, 243 (1999).
25. Nielsen v. Preap, 139 S. Ct. 954, 968 (2019).
26. Id. at 959.
27. Immigration Act of 1990, Pub. L. No. 101-649, § 507, 104 Stat. 4978,
28. Margaret H. Taylor, The 1996 Immigration Act: Detention and Related
Issues, 74 Interpreter Releases 209 (1997).
29. Matter of Truong, 22 I&N Dec. 1090 (BIA 1999).
30. Detention of Aliens in Bureau of Prisons Facilities: Hearing Before the
Subcomm. on Courts, Civil Liberties & the Admin. of Justice of the H. Comm. on
the Judiciary, 97th Cong. 1–3 (1982).
31. U.S. Dep’t of Justice, Off. of the Inspector Gen., The September 11
Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in
Connection with the Investigation of the September 11 Attacks 12 (2003).
32. Id. at 111–15.
33. César Cuauhtémoc García Hernández, ICE Transitioned from Obama to
Trump with Record High Daily Detention Population, (April 3,
2018, 12:30 AM),
34. United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009).
35. Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1351
36. Sioban Albiol et al., Re-Interpreting Postville: A Legal Perspective, 2
Depaul J. for Soc. Just. 31, 33, 39 (2008).
37. Erik Camayd-Freixas, Interpreting After the Largest ICE Raid in US History:
A Personal Account 2, 11 (2008).
38. Hamed Aleaziz, The Rise of the ICE Official Who Said Detention Was “More
Like Summer Camp,” BuzzFeed News (August 7, 2018),
39. Tanya Golash-Boza, The Immigration Industrial Complex: Why We Enforce
Immigration Policies Destined to Fail, 3 Soc. Compass 295, 296 (2009).
4: The Immigration Prison Archipelago
1. Federal Building, New York, NY, U.S. Gen. Serv. Admin.,
(last visited November 14, 2018).
2. Dhine v. Slattery, 3 F.3d 613, 619 (2nd Cir. 1993).
3. Jackie Rothenberg, INS Releases Ethiopian Jew After 9 Years Behind Bars,
New York Post (May 24, 1999); Alisa Solomon, The Prison on Varick Street, New
York Times (June 11, 1994), at A21.
4. U. S. Dep’t of Homeland Security, Immigration and Customs Enforcement,
Office of Detention Oversight Compliance Inspection: Enforcement and Removal
Operations 1 (2012),
5. About the Artesia Center, Fed. Law Enforcement Training Centers,
6. Anonymous, What We Endured in Family Detention, New York Times (June
26, 2018), at A23.
7. Letter from Scott Allen & Pamela McPherson to Hon. Charles E. Grassley et
al. at 3–4 (July 17, 2018); Scott A. Allen & Pamela McPherson, We Warned DHS
That a Migrant Child Could Die in U.S. Custody, Washington Post (December 19,
8. Julia Braker, Declaration of Julia Braker, 2 (August 15, 2014),
9. Dep’t of Homeland Security, Report of the DHS Advisory Committee on
Family Residential Centers 38, 43 (2016).
10. Lutheran Immigration and Refugee Services & Women’s Refugee
Comm’n, Locking Up Family Values, Again 9 (2014).
11. Id. at 6 (2014).
12. Dora Schriro, Dep’t of Homeland Security, Immigration and Customs
Enforcement, Immigration Detention Overview and Recommendations 2 (2009).
13. César Cuauhtémoc García Hernández, Prison Reform’s Blind Spot, (July 23, 2015, 4:00 AM),
14. Reis Thebault, How a Flight Attendant from Texas Ended Up in an ICE
Detention Center for Six Weeks, Washington Post (March 23, 2019),
15. 8 U.S.C. § 1158(a) (2012).
16. Alex Garcia-Ditta, “She Lives in Fear,” Not in El Salvador, but in Texas
Detention, Texas Observer, May 10, 2016,
17. Dep’t. of Health & Human Services, Administration for Children &
Families, Office of Refugee Resettlement, Annual Report to Congress Fiscal Year
2016, at 51 tbl.25 (2016); Dep’t. of Health & Human Services, Administration for
Children & Families, Office of Refugee Resettlement, Annual Report to Congress
Fiscal Year 2008, at 61 (2011); Dep’t. of Health & Human Services,
Administration for Children & Families, Office of Refugee Resettlement, Facts and
Data, Referrals, (last
visited June 12, 2019).
18. Emma Kaufman, Segregation by Citizenship, 132 Harvard Law Review
1379, 1404, 1416 (2019); Fed. Bureau of Prisons, Contract Prisons, (last visited June 10,
19. Schriro, supra note 12, at 4.
20. Malik Ndaula & Debbie Satyal, Rafiu’s Story: An American Immigrant
Nightmare, in Keeping Out the Other: A Critical Introduction to Immigration
Enforcement Today 241, 250 (David C. Brotherton & Philip Kretsedemas eds.,
21. In re Gault, 387 U.S. 1, 27 (1967) (internal citations omitted).
22. Caitlin Patler, The Economic Impacts of Long-Term Immigration Detention
in Southern California 3–4 (2015).
23. ICE Workplace Raids: Their Impact on U.S. Children, Families and
Communities: Hearing Before the Subcomm. on Workforce Protections of the H.
Comm. on Education and Labor, 110th Cong. 23 (2008) (statement of Kathryn M.
Gibney, Principal, San Pedro Elementary School, San Rafael, California).
24. Heather Koball et al., Health and Social Service Needs of US-Citizen
Children with Detained or Deported Immigrant Parents 5 (2015).
25. Kalina Brabeck & Qingwen Xu, The Impact of Detention and Deportation
on Latino Immigrant Children and Families: A Quantitative Exploration, 32
Hispanic J. of Behav. Sci. 341, 355 (2010).
26. Randy Capps et al., Paying the Price: The Impact of Immigration Raids on
America’s Children 36–37, 47 (2007).
27. Office of the Inspector Gen., Dep’t of Homeland Sec., Removals Involving
Illegal Alien Parents of United States Citizen Children 4, 6 fig. 2 (2009).
28. Nina Rabin, Unseen Prisoners: A Report on Women in Immigration
Detention Facilities in Arizona, 23 Geo. Imm. L.J. 695, 737 (2009).
5: The Good Immigrant vs. the Bad Immigrant
1. Greg Morago, Tout Suite Coffee Shop/Bakery Is Downtown’s “It” Hangout,
Houston Chronicle, October 17, 2014,
2. 22 C.F.R. § 40.21(a)(1) (1999).
3. Jordan v. DeGeorge, 341 U.S. 223, 233–34 (1951) (Jackson, J., dissenting).
4. Leif Reigstad, Local Chef Wrongly Held in Immigrant Detention Center for
Two Months, Houston Press, January 28, 2016,
5. Harriet Beecher Stowe, The Minister’s Wooing, in Three Novels: Uncle
Tom’s Cabin, The Minister’s Wooing, & Oldtown Folks 521, 576 (Library of
America 1982).
6. Ronald Reagan, Election Eve Address: A Vision for America (November 3,
7. President Ronald Reagan, Farewell Address to the Nation (January 11,
8. President Barack Obama, Remarks by the President at the 50th
Anniversary of the Selma Montgomery Marches (March 7, 2015),
9. Lawrence Mishel & Jessica Schieder, Economic Policy Institute, CEO
Compensation Surged in 2017, at 12 fig. C (August 16, 2018).
10. Kayla Fontenot et al., U.S. Census Bureau, Income and Poverty in the
United States: 2017, at 11 (2018).
11. INA § 212(a)(2)(h), 8 U.S.C. § 1182(a)(2)(h) (2012); INA § 237(a)(2) (B)(i),
8 U.S.C. § 1227(a)(2)(B)(i) (2012).
12. Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010).
13. Mellouli v Lynch, 135 S. Ct. 1980, 1985 (2015).
14. Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (internal quotations and
citations omitted).
15. President Donald Trump (@realDonaldTrump), Twitter (October 29, 2018,
8:41 AM),
16. German Lopez, Trump: After Mollie Tibbetts’s Murder, “We Need the Wall,”
Vox (Aug. 23, 2018, 10:00 AM),
17. Mladen Dolar, Who Is the Victim?, in The Final Countdown: Europe,
Refugees and the Left 67, 70 (Jela Krecic ed., 2017).
18. Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law &
Soc’y Rev. 117, 119 (2016).
19. Julianne Hing, Who Are Those ‘Gangbangers’ Obama’s So Proud of
Deporting?, Colorlines (October 17, 2012, 10:11 AM),
20. César Cuauhtémoc García Hernández, Attorney General Delivers Fiery
Speech in Defense of the Status Quo, (April 11, 2017, 3:13
21. Release of Criminal Detainees by U.S. Immigration and Customs
Enforcement: Policy or Politics?: Hearing Before the H. Comm. on the Judiciary,
113th Cong. 12 (2013) (statement of John Morton, Director, U.S. Immigration
and Customs Enforcement),
22. Id. at 3 (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the
23. U.S. Dep’t of Homeland Security, DHS Statement on Tragic Death of Minor
at Border (December 14, 2018),
24. Patricia Sulbarán Lovera, Felipe Gómez-Alonzo, el niño de Guatemala que
murió persiguiendo el sueño americano, BBC Mundo (March 17, 2019),
25. See Kawashima v. Holder, 565 U.S. 478, 480 (2012). Regarding their
sentences, see Petitioner’s Opening Brief, Kawashima v. Gonzales, 503 F.3d 997
(9th Cir. 2007) (No. 04-74313), 2005 WL 2106003, at *6.
26. Press Release, Congressman Steve King, King Introduces “Kate’s Law” in
the 115th Congress (January 6, 2017),
27. Kate’s Law, H.R. 3004, 115th Cong. (2017).
28. President Donald Trump (@realDonaldTrump), Twitter (July 13, 2015, 3:15
29. Donald J. Trump, Republican National Convention Nomination Acceptance
Speech (July 21, 2016),
30. Press Release, Sen. Dianne Feinstein, Feinstein Calls on San Francisco to
Join DHS Immigration Program (July 7, 2015),
31. Knauff v. Shaughnessy, 338 U.S. 537, 540, 547 (1950).
32. Id. at 551 (Jackson, J., dissenting).
33. Shaughnessy v. Mezei, 345 U.S. 206, 208–09 (1953).
34. Id. at 215.
35. Andrea Gómez Cervantes et al., “Humane” Immigration Enforcement and
Latina Immigrants in the Detention Complex, 12 Feminist Criminology 269, 278–
79 (2017).
36. INA § 236(c), 8 U.S.C. § 1226(c) (2012).
37. INA § 276(b), 8 U.S.C. § 1326(b) (2012).
38. Black Alliance for Just Immigration, The State of Black Immigrants: Part I:
A Statistical Portrait of Black Immigrants in the United States 10–11 (2016).
39. Black Alliance for Just Immigration, The State of Black Immigrants: Part II:
Black Immigrants in the Mass Criminalization System 26 (2016).
40. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1).
41. Alex Kuczynski, Melania Trump’s American Dream, Harper’s Bazaar,
January 6, 2016,
42. Dora Schriro, Dep’t of Homeland Security, Immigration and Customs
Enforcement, Immigration Detention Overview and Recommendations 4 (2009).
43. Nat’l Immigrant Justice Ctr., Invisible in Isolation: The Use of Segregation
and Solitary Confinement in Immigration Detention 18 (2012).
6: The Money
1. Web Staff, Prison in Cibola County to Close in October (August 2,
2. Seth Freed Wessler, Federal Officials Ignored Years of Internal Warnings
About Deaths at Private Prisons, The Nation (June 15, 2016),
3. Seth Freed Wessler, The Feds Will Shut Down the Troubled Private Prison
in “Nation” Investigation, The Nation (August 15, 2016),
4. U.S. Dep’t of Just., Office of the Insp. Gen., Review of the Federal Bureau
of Prisons’ Monitoring of Contract Prisons ii (August 2016).
5. Uriel J. Garcia, Western N.M. Communities Brace for Prison’s Closure,
Santa Fe New Mexican (September 3, 2016),
6. Press Release, Management & Training Corporation, MTC Signs Contract
with ICE to Operate Detention Facility in Raymondville (July 18, 2018),
7. Jeremy Raff, “So What? Maybe It Is a Concentration Camp,” The Atlantic
(February 23, 2018),
8. Mark Noferi & Robert Koulish, The Immigration Detention Risk
Assessment, 29 Geo. Immigr. L.J. 45, 47–48 (2015).
9. Robert S. Kahn, Other People’s Blood: U.S. Immigration Prisons in the
Reagan Decade 151–52 (1996).
10. Matt Miller, Prison Board Shopping for Inmates to Prevent Lay-Offs,
Patriot-News (Harrisburg, PA), June 22, 1993, at A4.
11. Lindsey Ragas, Rolling Plains Regional Jail and Detention Center in Haskell
Reopens, Creates More Jobs, KTXS (October 12, 2018).
12. Roxanne Lynne Doty & Elizabeth Shannon Wheatley, Private Detention
and the Immigration Industrial Complex, 7 Int’l Pol. Soc. 426, 427 (2013).
13. See Comer v. Stewart, 215 F.3d 910, 911–12, 918 (9th Cir. 2000); Jana
Bommersbach, The Trunk Murderess: Winnie Ruth Judd 2, 45 (1992); Paul Rubin,
Arizona’s Worst Criminal, Phoenix New Times, May 2, 2002,
14. Roger Mares, Empty Jail Brings No Jobs to Jones County, KTXS (May 14,
15. See Franklin E. Zimring & Gordon Hawkins, The Scale of Imprisonment
211 (1993).
16. See Gretel Kauffman, With No ICE Contract, Jerome County Turns to Less
Controversial Ways to Fill Its New Jail, (December 21, 2017),
17. Associated Press, Official: Cibola County Facing Prospect of Bankruptcy,
U.S. News & World Report (January 4, 2018, 3:15 PM),
18. Frederick Melo, Ramsey County Jail No Longer Taking Immigration
Detainees, Twin Cities Pioneer Press, January 23, 2018,
19. Stephanie Butts, ICE Detainees Never Delivered to County, Waco TribuneHerald, August 27, 2013,
20. Jeremy Redmon, ICE Detention Center Struggling Financially, Atlanta J.-
Const., April 23, 2012,
21. Fernando del Valle, Willacy County Braces for Prison Layoffs, Valley
Morning Star, March 6, 2015,
22. Tiffany Huertas, After Prison Riot, Raymondville Worried About Economic
Impact, (February 24, 2015, 3:40 GMT),
23. Nat’l Immigrant Justice Ctr., Freedom of Information Act Litigation Reveals
Systemic Lack of Accountability in Immigration Detention Contracting 13 (2015).
24. Doty & Wheatley, supra note 12, at 427 & note 6.
25. U. S. Dep’t of Homeland Security, Immigration & Customs Enforcement,
Budget Overview Fiscal Year 2018 Congressional Justification, ICE-O&S-132
26. ICE, Performance-Based National Detention Standards 2011, at 407, § 5.8,
27. U.S. Dep’t of Homeland Security, HSCEDM-16-R-00001, Immigration and
Customs Enforcement, Performance Work Statement, Florence Detention Center
(FDC)—Detention and Transportation Services, at 91 § 8 (2016).
28. Class Action Complaint for Unpaid Wages and Forced Labor, Menocal v.
The GEO Group, Inc., No. 1:14-cv-02887, 2014 WL 5389925 (D. Colo. October 22,
29. Jacqueline Stevens, One Dollar Per Day: The Slaving Wages of
Immigration Jail, From 1943 to Present, 29 Georg. Immigr. L.J. 391, 396 (2015).
30. Dep’t of Homeland Security, Homeland Security Advisory Council, Report
of the Subcommittee on Privatized Immigration Detention Facilities 5 (2016).
31. For population and cost amounts, see César Cuauhtémoc García
Hernández, ICE Transitioned from Obama to Trump with Record High Daily
Detention Population, (April 3, 2018, 12:30 AM),
32. CoreCivic, 2017 Annual Report Form 10-K 9 (2018).
33. The GEO Group, Inc., 2017 Annual Report 1 (2018).
34. César Cuauhtémoc García Hernández, If Private Prisons Close …, (September 1, 2016, 4:00 AM),
35. Elliot D. Pollack & Company, CCA: Arizona Correctional Facilities Economic
and Fiscal Impact Report 2 (2010).
36. Corrections Corp. of America, New Study Proves Public-Private Partnership
in Corrections Energizes State Economies, PRWeb (February 3, 2010),
49574.htm; Lauren Millette, Public Forum on Private Prison Benefits Cancelled,
Prescott eNews (February 9, 2010),
37. Center for Responsive Politics, For-Profit Prisons, (last
visited November 20, 2018),
38. Helping Unaccompanied Minors and Alleviating National Emergency Act,
H.R. 5114, 113th Cong. (2014).
39. Bob Libal, Humpday Hall of Shame—Henry Cuellar Wants Kids Deported
ASAP, Hauls in Private Prison Cash, Grassroots Leadership (July 16, 2014),
40. Laura Sullivan, Prison Economics Help Drive Ariz. Immigration Law, NPR
(October 28, 2010, 11:01 AM),
41. César Cuauhtémoc García Hernández, Texas Republican Admits He’s
Pushing Private Prison Corporation’s Bill, (April 27, 2017,
10:33 AM),
42. GEO Group Contributions to John N. Raney, FollowTheMoney.Org (last
visited November 20, 2018),
43. CoreCivic, supra note 33, at 81; The GEO Group, Inc., supra note 34, at
44. In the Public Interest, The Banks That Finance Private Prison Companies 3
45. CoreCivic, supra note 33, at 24, 50.
46. CoreCivic, Inc. Institutional Ownership, NASDAQ (November 20, 2018),
47. GEO Group Inc (The) Institutional Ownership, NASDAQ (November 20,
7: Abolishing Immigration Prisons
1. Book of Joshua 6:20 (King James).
2. Doe v. United States, 831 F.3d 309, 320 (5th Cir. 2016); Doe v. Robertson,
751 F.3d 383, 391 (5th Cir. 2014).
3. Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture
75 (2005).
4. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), superseded by
constitutional amendment, U.S. Const. amend. XIV.
5. W.E.B. DuBois, The Souls of Black Folk 123 (David W. Blight & Robert
Gooding-Williams eds., 1997) (1903).
6. Davis, supra note 3, at 111.
7. Michel Foucault, Discipline and Punish: The Birth of the Prison 234 (Alan
Sheridan trans., Vintage Books 2d ed. 1995) (1977).
8. U.N. High Comm’r for Refugees, In Rural Pennsylvania, a Model of Civil
Immigration Detention (January 6, 2011),
9. Charles Dickens, American Notes for General Circulation 51 (1859).
10. Jana K. Lipman, “The Fish Trusts the Water, and It Is in the Water That It Is
Cooked”: The Caribbean Origins of the Krome Detention Center, 2013 Radical
Hist. Rev. 115, 123–125 (2013).
11. Carl Lindskoog, Detain and Punish: Haitian Refugees and the Rise of the
World’s Largest Immigration Detention System 75–76 (2018).
12. Id. at 76–79.
13. Id. at 73.
14. Michael Flynn, The Hidden Costs of Human Rights: The Case of
Immigration Detention, 4–5 (Glob. Det. Project, Working Paper No. 7, 2013).
15. Lindskoog, supra note 11, at 64.
16. Id. at 122–23.
17. Jenna M. Loyd & Alison Mountz, Boats, Borders, and Bases: Race, the Cold
War, and the Rise of Migration Detention in the United States 73, 80, 88–89
18. Malcolm M. Feeley, Entrepreneurs of Punishment: The Legacy of
Privatization, 4 Punishment & Soc’y 321, 333 (2002).
19. Mijente, Free Our Future: An Immigration Policy Platform for Beyond the
Trump Era 8 (2018).
20. Jennifer Stave et al., Evaluation of the New York Immigrant Family Unity
Project: Assessing the Impact of Legal Representation on Family and Community
Unity 25 tbl.4, 50, 65 n.64 (2017).
21. How Often Is The Aggravated Felony Statute Used?, TRAC Immigration, (last visited November 23, 2018).
22. Shaughnessy v. Mezei, 345 U.S. 206, 224 (1953) (Jackson, J., dissenting).
23. Emily Ryo, Legal Attitudes of Immigrant Detainees, 51 Law & Soc’y Rev.
99, 102, 121 (2017).
24. Catholic Legal Immigration Network, Inc., The Needless Detention of
Immigrants 27–29 (2000).
25. Megan Golden et al., Vera Institute of Justice, The Appearance Assistance
Program: Attaining Compliance with Immigration Laws Through Community
Supervision 7 (1998).
26. Id. at 14–15.
27. Catholic Legal Immigration Network, Inc., supra note 25, at 27.
28. Lutheran Immigration & Refugee Services, Family Placement Alternatives:
Promoting Compliance with Compassion and Stability Through Case
Management Services 8 (2016).
29. Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law &
Soc’y Rev. 117, 134 fig.2 (2016).
30. Furman v. Georgia, 408 U.S. 238, 272–73 (1972).
31. Trop v. Dulles, 356 U.S. 86, 100 (1958).
32. Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 887 (N.D. Cal. 2009).
33. Brown v. Plata, 563 U.S. 493, 510 (2011).
34. Hannah Arendt, The Origins of Totalitarianism 364 (2004).
35. Id.
36. Allison Crennen-Dunlap, Comment, A Constitution That Starves, Beats,
and Lashes (Or the Plenary Power Doctrine): Jennings v. Rodriguez and a Peek
into Immigration Dissent History, 95 Denver L. Rev. 95, 103 (2018).
37. Saskia Sassen, Guests and Aliens 155–56 (1999).
38. Chancellery of El Salvador, El Cuento de Coyote, YouTube (July 15, 2014),
39. Ron Nixon, U.S. Campaign Against Migration Goes Unheard, or Unheeded,
in Guatemala, New York Times, October 7, 2018,
40. Jennifer M. Chacón, Overcriminalizing Migration, 102 J. Crim. L. &
Criminology 613, 649 n.186 (2012).
41. See Comm. on Law & Justice, Nat’l Research Council, Budgeting for
Immigration Enforcement: A Path to Better Performance 34–35 (Steve Redburn
et al. eds., 2011); Marc. R. Rosenblum, Unaccompanied Child Migration to the
United States: The Tension Between Protection and Prevention 19 (2015); Wayne
A. Cornelius & Idean Salehyan, Does Border Enforcement Deter Unauthorized
Immigration? The Case of Mexican Migration to the United States, 1 Reg. &
Governance 139, 145 (2007).
42. Jacob I. Stowell et al., Latino Crime and Latinos in the Criminal Justice
System: Trends, Policy Implications, and Future Research Initiatives, 4 Race &
Soc. Problems 31, 36 (2012).
43. Robert Adelman et al., Urban Crime Rates and the Changing Face of
Immigration: Evidence Across Four Decades, 15 J. Ethnicity in Crim. Just. 52, 70
44. Matthew T. Lee & Ramiro Martinez, Jr., Immigration and Asian Homicide
Patterns in Urban and Suburban San Diego, in Immigration and Crime: Race,
Ethnicity, and Violence 90, 109 (Ramiro Martinez, Jr. & Abel Valenzuela, Jr., eds.,
2006); Jeffrey D. Morenhoff & Avraham Astor, Immigrant Assimilation and Crime:
Generational Differences in Youth Violence in Chicago, in Immigration and Crime:
Race, Ethnicity, and Violence 36, 55–56 (Ramiro Martinez, Jr. & Abel Valenzuela,
Jr., eds., 2006); Amie L. Nielsen & Ramiro Martinez, Jr., Multiple Disadvantages
and Crime Among Black Immigrants: Exploring Haitian Violence in Miami’s
Communities, in Immigration and Crime: Race, Ethnicity, and Violence 212, 227–
28 (Ramiro Martinez, Jr. & Abel Valenzuela, Jr., eds., 2006).
45. Jennifer L. Truman & Rachel E. Morgan, Criminal Victimization, Bureau of
Just. Stat. 1, 5 (2016).
46. United States v. Goodwin, 457 U.S. 368, 382 (1982).
47. In re Davis, 130 S. Ct. 1, 3 (2009) (Scalia, J., dissenting).
48. Missouri v. Frye, 566 U.S. 134, 144 (quoting Robert E. Scott & William J.
Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).
49. Kate Kelly & David Enrich, Kavanaugh’s Yearbook Is “Horrible, Hurtful” to
a Woman It Named, New York Times, September 24, 2018,
50. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 461 (2018).
1. Slavoj ŽiŽek, Terrorists with a Human Face, in The Final Countdown:
Europe, Refugees and the Left, 187, 199 (Jela Krecic ed., 2017).
2. Thomas Nail, The Figure of the Migrant 1 (2015).
César Cuauhtémoc García Hernández is a professor of
law at the University of Denver and an immigration lawyer.
He runs the blog and regularly speaks
on immigration law and policy issues. He has appeared in
the New York Times, the Wall Street Journal, NPR, The
Guardian, and many other venues.
Thank you for reading this book published by The New
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New Press books and authors play a crucial role in sparking
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