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America Turned Against Migrant Detention Before. We Can Do It Again

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Minian is a professor of history at Stanford University and the author of the award-winning book Undocumented Lives, and In the Shadow of Liberty. They are a recipient of the prestigious Andrew Carnegie fellowship, and their writing has appeared in The New York Times, The Atlantic, and Foreign Affairs, among other outlets

People detained without trial. Separated from their children. Denied basic constitutional rights. Unaware of when they will be released or even if they will be released. Subjected to beatings and other torture. Americans have long pinned these abuses to far-off regimes and distant times: Nazi Germany, Pinochet’s Chile, the Soviet Union. In reality, however, in the United States, people are being subjected to such violent and unconstitutional treatment on a daily basis. This is the world of immigrant detention.

Since its inception, detention has been an affront to basic ideals of justice and compassion. It is so by design: when the government first introduced federal immigration detention in 1891, it designated detention facilities as spaces where the Constitution did not reign. According to the law that passed that year, migrants stopped at the border are legally considered to be outside the country. When these “entrants” are detained in the U.S. while the government decides their fate, they are to be treated as if they are not here.  This is the case whether the detention centers are near the border or deep within the country. The detention centers exist on the U.S. map, but the “entrants” within them are presumed to be held outside the nation. Since they are “not here,” those detained are not guaranteed basic constitutional protections—even when subjected to the law and force of the state.

The U.S. was founded on the notion that people have “cer­tain unalienable Rights, that among these are Life, Liberty, and the pur­suit of Happiness.” The Fifth Amendment echoed this assertion, stating that “no person” should “be deprived of life, liberty, or property, without due process of law.” The amendment did not speak in terms of citizens but in terms of persons, and it was unambiguous: people deserved due process before being deprived of liberty. In 1798, Thomas Jefferson ex­plicitly wrote: “Habeas Corpus secures every man here, alien or citizen, against everything which is not law.”

Jefferson was clear on his point that foreigners deserved due process, but perhaps he and the other Founding Fathers should have been more specific about what they meant by the seemingly unequivocal term “here.” After all, slightly over a century later Congress passed the 1891 law by which those stopped at the border were to be considered not “here.” This doctrine, which came to be known as the “entry fiction,” continues to dictate conditions for asylum seekers and migrants stopped at the border to this day.

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Abuse and dehumanization have occurred no matter when, how, or why detention was being used— they are intrinsic to the system. Between the end of the 19th century and the mid-1950s, de­tention was conceived as a means of enforcing the nation’s exclusionary laws. At the time, the government sought to exclude from entry those migrants it considered undesirable, such as Chinese laborers, and those deemed to be “idiots,” “insane,” or likely to become a public charge. Migrants were detained while officials determined whether these foreign nationals had the right to enter the country or not. The purpose of detention was not to hurt the new arrivals, but the system nonetheless did. Migrants were incarcerated without knowing why or when they would be released. They were held in conditions so terrible that many died by suicide. Guards regularly beat them. Those detained lived in a world where spending time out­side was rare, windows were barred, and quarters were overcrowded. At these sites, children were often separated from their parents and guardians.

Courtesy of Penguin Random House LLC.

In 1954, government officials decided that there were more compassionate and effective ways to deal with the migrants who were coming to America than caging them. The vast majority of new arrivals could be released on conditional “parole,” the term used for pretrial release in immigration cases, while their cases were being reviewed. Detention, officials held, was to be reserved for migrants who were deemed likely to abscond or who posed a threat to national security or public safety. In 1958, the Supreme Court, in Leng May Ma v. Barber, even held that “physical detention of aliens is now the exception, not the rule,” and pointed out that “certainly this policy reflects the humane qualities of an enlightened civilization.”

But this more “enlightened” drive only lasted until 1980, when over 124,000 Cubans arrived in America on the Mariel Boatlift. Soon thereafter the Reagan administration reintroduced detention in full force. It also changed its logic. Previously, immigrants had been detained while the government decided whether they could stay or be deported; now the explicit goal of detention became to deter future migrants from embarking for the U.S. in the first place. Harm became detention’s ready weapon. The emotional and physical abuse, suicides, and other deaths inside detention facilities rose dramatically.

Beyond its incalculable human costs and its erosion of our legal and ethical principles, detention is also financially costly. Throughout America’s history, the federal government has spent vast sums to keep migrants behind bars. In the 2018 fiscal year, the country spent over $3 billion on immigrant detention. That money could have been used for myriad other purposes. That very year, the enacted budget of the Envi­ronmental Protection Agency was $8.8 billion— only three times more than the amount the government used to detain nearly 400 thousand migrants among a nation of over 300 million peo­ple. If those immigrants had been freed into the custody of their families and friends, that money could have been used to further protect the na­tion’s water, reduce pollution, clean up toxic lands, and safeguard human health.

Many Americans believe that detaining foreign arrivals while the government determines if they have a right to enter the coun­try is an indispensable practice. Otherwise, the thinking goes, unautho­rized migrants will abscond and vanish among the American populace. This logic resembles the government’s reasoning for detaining arrivals before 1954. But hard evidence in both our nation’s history and our pres­ent shows that this reasoning is fallacious. In the years between 1954 and 1980, when the government spoke against detention, U.S. officials released most non-Mexican entrants on parole instead of imprisoning them, knowing that the vast majority of released mi­grants would not flee.

Similarly, current data suggests that most migrants released today appear in court when required, which means that there is no need to detain them. Multiple studies have shown that approximately 88% of all non-detained individuals attended their court hearings in the past two decades, including in recent years. That percentage rose to about 98% among those with legal representation or among asylum seekers regardless of whether they had access to legal counsel or not.

Detention is also useless as a means of deterrence. It never stopped foreign nationals from coming to the U.S.. No matter how long migrants were detained or how cruel the system was, they kept coming, because the situations in their home countries were even more dire. For instance, during the years of Chinese exclusion, Chinese mi­grants knew that they would be detained upon arrival. They still boarded the ships heading to America. The same phenomenon occurred over and over again with migrants who came from different parts of the world at different times. In the 1980s, Haitian refugees were aware that the U.S. government would in­carcerate them if the Coast Guard caught them, but migrating was a matter of life and death so they came. Central American asylum seekers have long fled to the U.S. although they are aware that they might be detained in freezing rooms under dehumanizing conditions. Even Trump’s draconian family separation policy, which was intended to curtail migration, failed in its goal: the year after it was introduced, apprehensions along the US‑Mexico border were 88 percent higher than the year before. Migrants had continued to come. The most inhumane form of deterrence yet imagined failed in its intended goal.

Thankfully, America’s history does not only show the costs, violence, and futility inherent in detention, but it also provides us with potential alternatives. In the years between 1954 and 1980, U.S. leaders spoke forcefully against immigrant incarceration. Like In those years, parole continues to offer the most viable alternative to the costly, inhumane, and ineffective system of detention, at least until there is a complete overhaul of the nation’s immigration laws.

Detaining migrants is pointless. The human pain it causes is unnec­essary. The money used is wasted. Immigrant detention has never been effective in its intended goal whether this is exclusion or deterrence. Rather than caging migrants and refugees, the government should simply release them and allow them to reside with friends, family, or community members in the U.S. while it examines their cases.

From IN THE SHADOW OF LIBERTY by Ana Raquel Minian, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2024 by Ana Raquel Minian.

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