The History of Immigration Detention in the U.S.
A Rapidly-Expanding Detention System
The detention of immigrants pending the resolution of their legal status and potential deportation was not always the norm. Immigrants were not detained at all until the 1890s when the United States opened its first federal immigration detention center in Ellis Island, New York. A shift in immigration policy occurred in 1952 when Congress passed the Immigration and Nationality Act (INA), which eliminated detention except in cases in which an individual was a flight risk or posed a serious risk to society. Ellis Island subsequently closed.
The 1980s saw the beginnings of a different shift in detention policy, largely influenced by Cuban, Haitian, and Central American refugees. In the 1990s the United States made a monumental shift in immigration policy, using detention as a primary means of enforcement, regardless of whether the individual was a flight risk or serious risk to society. In 1996, the United States enacted legislation that dramatically expanded the use of detention. The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) expanded mandatory detention without bond to large categories of non-citizens.
The drastic expansion of mandatory detention combined with skyrocketing detention budget appropriations to the Department of Homeland Security(DHS) and changes in DHS policies and priorities favoring detention. As a result, the number of individuals detained has grown dramatically since the 1990s. In 2001, the U.S. detained approximately 95,000 individuals. By 2010, the number of individuals detained annually in the U.S. had grown to approximately 390,000. The average daily population of detained immigrants has grown from approximately 5,000 in 1994, to 19,000 in 2001, and to over 33,000 by the end of 2010. ICE’s stated goal is to deport 400,000 non-citizens each year.
The 1996 laws also established a new procedure called Expedited Removal that allows immigration inspectors to summarily remove immigrants arriving without proper documentation. This is done without a hearing, and detention is mandated for the time it takes to remove that person from the United States. Asylum seekers and people claiming to have status in the United States are held without bond until they have established a “credible fear” of return to their country or until their status is determined. Originally, Expedited Removal was required only at the border, but was expanded in 2004 to include all undocumented immigrants apprehended within 14 days of entry and 100 miles of the border in some Border Patrol sectors. It was expanded again in 2006 to include all areas within 100 miles of U.S. borders, including coastal areas.
Why does the U.S. continue to rely on a system of detention?
- Today’s detention system originated in the United States’ response to mass migrations, particularly that of Cubans, Haitians, and politically displaced Central Americans, in the early 1980s.
- The U.S. government maintains that detention is the only way to ensure that immigrants appear for their immigration court proceedings. The government considers immigrants to be a “flight risk,” and labels others a “danger” to their communities if they have a previous criminal record, without any individualized assessment.
- Detention is used to deter immigrants from coming to the United States, even though many studies point to economics as more of a determining factor than enforcement levels.
- U.S. policymakers see detention and deportation as a politically salient “quick fix” to broken immigration policies and to the complex issues of global and regional poverty and instability. Instead of recognizing and addressing larger economic and political structures that cause people to immigrate, politicians focus on interior and border enforcement as a way to repel people from migrating.
- The detention and deportation of immigrants is a multi-billion dollar industry. Many private prison corporations and state and county governments profit from detention. By contracting out detention bed space, the government maintains it is able to save money. However, the regular reports of poor detention conditions and other abuses indicate that facility operators may be cutting financial corners at the expense of immigrants’ well-being.
To learn more about the profits of detention, go to the Money Trail.
- While the U.S. government suspended the widespread use of immigration detention between the 1950s and 1980s, the country has a long history of immigration restriction which spans the detention and exile of Native Americans since colonial times to detentions at Ellis and Angel Islands in New York and California in the early 20th Century.
- The detention system is virtually invisible. Many detention centers have few markings and are in remote and isolated locations. As a result, the public is generally unaware of the high numbers of immigrants that are detained across the nation and in their local communities.
Click here to see where immigrants are being detained near you.
- The detention system is vast, ever-changing, and shrouded in secrecy. ICE frequently refuses to share information or allow visits to facilities, resulting in the public having little knowledge of harsh conditions and rights abuses within the system while U.S. immigration agencies remain unaccountable.
Click here to read the testimonies of immigrants in detention.
- Because immigration detainees are subjected to the criminalization process through the act of detention and many are impoverished persons of color, detainees do not receive much sympathy from the public or attract much attention from the mainstream media.
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Detention is a Dire Human Rights Issue
- International law prohibits arbitrary detention. The International Covenant on Civil and Political Rights, art. 9, requires that anyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. This right is guaranteed regardless of national origin. International law also requires that anyone deprived of liberty must be treated with humanity and respect for the inherent dignity of the person. ICCPR, art. 10.
- Immigrants in detention are regularly denied basic due process rights. There are no government-appointed attorneys for individuals in deportation proceedings and there are many restrictions on the individual’s right to a full hearing on the merits of his or her circumstances.
- Detention places extreme financial and emotional burdens on families by separating children, parents, siblings, and spouses from one another. One in five American families is of “mixed” status with U.S. citizens, legal permanent residents and undocumented family members in one household. When someone is detained it leaves a considerable impact on families and local communities – children become parentless, families lose their breadwinners, and jobs and community responsibilities become vacant. International law requires that the United States protect the family as the natural and fundamental group unit of society. ICCPR, art. 23.
- The harshness of the detention and deportation system may force immigrants in the U.S. to go into hiding and live in fear. Undocumented persons often do not seek help in emergencies or report crimes for fear of exposing themselves to immigration authorities, making communities more unsafe. Those escaping persecution in their home countries may also be deterred from applying for asylum, putting them at grave risk.
- Detention and deportation are extreme and punitive measures for individuals going through a civil administrative process. The very act of detention attaches the stigma of criminalization to immigrants and enmeshes them in the U.S. criminal justice system.
- Immigration detention facilities look, feel, and operate like jails. The human rights abuses which occur in these harsh conditions, such as a lack of access to proper nutrition and exercise, medical care, legal and educational materials, phones, and visitation, are exacerbated in cases where immigration detainees are held for long periods of time in facilities designed for short-term detention. Reports of physical and sexual abuse, sleep deprivation, and isolation are common.
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*This introduction is adapted from “Voices from Detention: A Report on Human Rights Violations at the Northwest Detention Center,” Seattle University School of Law Human Rights Clinic and OneAmerica, July 2008.