Throughout America, immigrants—most of whom haven’t even been accused of a crime—are jailed alongside convicted criminals. Immigration officials can legally hold noncitizens indefinitely before deporting them, and without giving them legal rights afforded citizens convicted of even the most serious offenses.
Questioning Authority spoke with David Hernández, assistant professor of Spanish, Latina/o, and Latin American studies, about the largely “invisible” issue of immigrant detention. He is currently writing a book on the subject.
Questioning Authority: Who is being detained, where, and why?
David Hernández: Four hundred thousand men, women, and children—90 percent of them from Latin America and the Caribbean—are deported each year. They cycle through the nation’s 34,000 detention beds, some staying a few nights, some for weeks, others for years. Some have committed deportable crimes, but others have just overstayed their visas or are seeking asylum in the United States. They’re held in 250 facilities—federal detention centers, for-profit prisons, and county jails.
Although the Obama administration says they are just going after criminals, they’re really catching everyone. Only 15–20 percent of those deported each year have any serious or violent criminal record. Traffic violations and minor crimes account for most criminal deportations.
QA: Do immigrant detainees have the same legal rights as citizens accused of crimes?
DH: No. Immigrants are detained under an administrative system, not a criminal one. So, for example, agents can burst into an immigrant’s home without a warrant, no Miranda warnings need be given, and there is no right to a lawyer paid for by the state. Only one in eight detainees has counsel, and the success rate of those having and not having a lawyer is vastly different.
QA: What’s the justification given for detaining immigrants without giving them the rights others have?
DH: It goes back more than 100 years and is built into the Supreme Court’s conception of national sovereignty. It has ruled that every nation can exclude “undesirables” from the country and incarcerate them prior to deportation. Because detention and deportation are not considered criminal punishment, criminal protections are not triggered or deemed legally necessary.
QA: What happens to immigrants in these detention centers?
DH: They can suffer all the abuses other prisoners suffer, including solitary confinement for arbitrary reasons, detention of children, sexual abuse, and denial of adequate medical care. About 100 people have died in immigration facilities in the last decade.
QA: Why hasn’t the public heard more about this?
DH: Because the whole system is obscure. It’s dwarfed by the size of the prison industrial complex (which has 2.5 million inmates), centers are spread out geographically, and people are held under a largely unknown bureaucratic system.
QA: When did the assumption morph from “immigrants built America” to “immigrants threaten America”?
DH: You can read the government’s [changing] view of immigration by its bureaucratic location: What is now Immigration and Customs Enforcement has moved from the Department of Commerce to Labor to Justice and now to Homeland Security. And although we have seen expansions of immigrant detention as tied to specific national crises, each decade of the 1900s had such a crisis, so the system has been consolidating for more than a century.
QA: What alternatives to the detention/deportation system have been proposed?
DH: Some want to put immigration under criminal law and give people full due-process rights. Some advocate parole-like alternatives involving regular check-ins and wearing a GPS tracking device. Others say just stop deporting people.
QA: Are comprehensive immigration reform proposals before Congress likely to help this situation?
DH: Immigrant detention is rarely part of these discussions, and often government’s power to detain immigrants is actually enhanced when new immigration laws are passed. That’s because people will accept harsher punishments for deportees in exchange for amnesty, a guest-worker program, or even driver’s licenses for immigrants allowed to remain in the U.S.