Faculty of law blogs / UNIVERSITY OF OXFORD

All Souls Blog: Closing Immigration Prisons

César Cuauhtémoc García Hernández is a law professor at the University of Denver who studies the intersection of criminal and immigration law. In December 2019, he published Migrating to Prison: America’s Obsession with Locking Up Immigrants, about the United States’ reliance on prisons to enforce immigration law. In 2015, he published his first book, Crimmigration Law. His essays have appeared in The New York TimesLos Angeles Times, Time Magazine, The GuardianNewsweekSalon, and elsewhere. He has been quoted in the Wall Street JournalNational Public RadioNBC NewsPublic Radio InternationalBBCThe NationUnivisionTelemundo, and numerous other publications in the United States and around the world.

In the first All Souls Lecture Series of 2021, César Cuauhtémoc García Hernández offered a compelling talk on immigration imprisonment in the United States (US). By tracing the contemporary development of immigration prisons, describing their role today, and arguing for a reimagined idea of citizenship at the center of immigration policy, his lecture untangled the complexities of immigration prisons and established a framework for envisioning a world without them.


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3 Minutes

Mapping the Growth of Immigration Prisons

García Hernández began his lecture underscoring that, at one point, the US rarely imprisoned immigrants. He referred to 1954 for evidence, stressing how under the Eisenhower administration, the attorney general ordered officials to stop detaining migrants, even if they were unlawfully present in the country. Similarly, he said the US Supreme Court disfavored confining noncitizens. In 1958, delivering the opinion in Leng May Ma v. Barber, Justice Clark declared, ‘physical detention of aliens is now the exception, not the rule,’ further opining, ‘this policy reflects the humane qualities of an enlightened civilization.’

According to García Hernández, however, the US shifted away from ‘enlightenment’ shortly after. In the 1970s and 1980s, as ‘dark-skinned migrants’ entered the US without authorization, federal officials used prisons to confine them. The Carter administration began incarcerating Haitian migrants who fled the brutal dictatorship of the Duvalier regime. Afterward, the Reagan administration proceeded to detain Cuban migrants escaping their homeland during the Mariel boatlift. At the same time, the US also imprisoned migrants who sought refuge from the civil wars that ravaged Central America. The US incarcerated Central American migrants in ‘federal penitentiaries,’ ‘military bases,’ and ‘prison-like detention centers’ across the country.

Backed by Democratic President Jimmy Carter and Republican President Ronald Reagan, García Hernández observed how immigration imprisonment distinctly emerged out of bipartisan support and continues growing because of support from both political parties. Republican President George H.W. Bush, for example, used Guantanamo Bay to detain Haitian non-citizens; Democratic President Bill Clinton also did the same. Next, Republican President George W. Bush built a detention center in Texas to detain noncitizens and their children. Likewise, his successor, Democratic President Barrack Obama—although he closed Bush’s detention facility in Texas—opened two other similar sites, which his administration called ‘family residential centers.’ Finally, and most recently, Republican President Donald Trump adopted a ‘zero-tolerance’ policy to criminally prosecute and imprison noncitizens along the US-Mexico border, even if it meant separating them from their children.

The Immigration Prison System Today

Today, immigration prisons are ‘everywhere,’ noted García Hernández. From an old motel in Tucson, Arizona to an assortment of local jails in northern New Jersey, they are ubiquitous as ordinary penal institutions. Although they do confine noncitizens who committed crimes in the US, they also imprison migrants whose only crime was entering the US without authorization. Under Title 8 of the US Code, Section 1325, unlawful entry into the US is a federal crime—a misdemeanor punishable by up to six months for a first-time offense. Under Section 1326, unlawful reentry, after having been previously removed from the US, is a felony, punishable by up to two years for first-time offenders.

According to García Hernández, today’s immigration prison network spreads across three federal departments, encompassing a total of five agencies. Under the Department of Homeland Security (DHS), Customs and Border Protection (CPB) is responsible for apprehending people along the US-Mexico border suspected of unlawfully entering the country. Within DHS as well, Immigration Customs Enforcement (ICE) is charged with enforcing immigration laws in the interior of the US. There are also two agencies in the Department of Justice (DOJ): the US Marshals Service (USMS) and the Federal Bureau of Prisons (BOP). The USMS is responsible for the pretrial confinement of migrants charged with committing federal crimes. The BOP is tasked with administering punishment after the US criminally prosecutes and sentences migrants to prison. Lastly, in the Department of Health and Human Services (HHS), the Office of Refugee Resettlement (ORR) is responsible for the custody of unaccompanied minors. To do so, they contract with nongovernmental organizations to house migrant children across the country. Overall, the US spends billions of dollars to sustain the immigration prison network.

As the immigration prison network continues to expand, García Hernández highlighted that migrants are, in effect, “counted’ and ‘commodified’ in the process of entering and existing the system. For this reason, and to refocus ‘our collective moral compass,’ he proposes abolishing immigration prisons by imagining their nonexistence and expanding our understandings of citizenry.

Reimagining Immigration Prisons and Citizenry

Acknowledging the challenges of abolishing immigration imprisonment, García Hernández suggested starting by placing a ‘reimagined sense of citizenship’ at the ‘center of immigration policy.’ For him, migrants have been held to a higher standard than U.S. citizens, when, like U.S. citizens, they are ‘ordinary’ people, who are composed of flaws and sometimes ‘stained by the criminal justice system.’ In doing so, García Hernández believes we can remove the myth that has long existed in US history, namely, that people immigrating to the US should be exceptional.

To reimagine citizenship, García Hernández introduced his latest project, which he called “In Defense of the Criminal Alien.” His project embraces the ‘US legal tradition’ and ‘historical aspiration of redemption’ to conceptualize the citizenry as ‘a motley collection of outcasts and scoundrels, of misfits and deviants.’ By reimagining the citizenry in this way, García Hernández argued we can embrace our own imperfections and ‘the alien in our midst,’ and begin unraveling the criminalization of migration, including the use of immigration prisons.

Blog post by Bill De La Rosa, doctoral candidate at the Center for Criminology. His research focuses on the role of punishment in immigration law and policy.