The Rise of ICE and Immigration Detention
It’s a common belief in media that immigration, criminal law, and the detention of immigrants intertwined and worsened after the 9/11 attacks. However, the story of how immigration and criminal law became linked starts much earlier than 2001.
This piece was originally published on September 5, 2018, as part of The New Leader series The Arc of Justice: Examining the Failures of Criminal Justice and the Hopes of Progressive Reforms.
You may be asking yourself, “why is there a piece on immigration law in a series about criminal justice?”
Or maybe you are thinking, “Yes, this makes sense. Since the September 11, 2001 attacks, immigration and criminal law have become intertwined in the name of national security.”
The truth is that the story of how immigration and criminal law became linked starts much earlier than 2001.
In 1875, the US Supreme Court ruled that immigration was a federal responsibility after some states began to pass their own immigration laws. Until the 1940s, the agencies in charge of immigration were at different times under the Department of Treasury, the defunct Department of Commerce and Labor, or the Department of Labor. Instead of being an issue of national security, the concerns around immigration prior to 1940 revolved around revenue and commerce. Immigrants were taxed for coming into the country. In the name of protecting American workers, policies were put in place to limit immigration from non-western European countries
In 1933, the Immigration and Naturalization Service (“INS”) was formed under the Department of Labor. Although this agency existed until 2003, President Franklin Roosevelt moved INS to the Department of Justice in 1940. This marked a clear change in approach toward immigration law from an economic perspective to one of crime and national security.
After Pearl Harbor was attacked by Japan in December 1941, President Roosevelt enacted an executive order authorizing the “relocation” of tens of thousands of people of Japanese ancestry, regardless of whether they were US Citizens or legal residents.
The Federal Bureau of Investigation and other law enforcement agencies arrested thousands without warrants, denied them access to an attorney, and placed them in internment camps run by the military and INS. By the end of the war, approximately 120,000 people of Japanese descent were placed in internment camps. Although the legality of the executive order was challenged in the US Supreme Court, the justices ruled that the executive order was valid under the US Constitution.
Does this all sound and look familiar?
While a detention system and xenophobic policies toward non-white immigrants existed prior to World War II, the creation of Japanese Internment Camps signaled a major shift toward the prison model that is being used today. The 1952 Immigration and Nationality Act gave immigration authorities the discretion to release someone on bail and listed numerous criminal convictions as deportable offenses. The 1980’s saw a growth in the creation of detention centers in response to the large-scale migration of Haitian and Cuban refugees in the 1970s. This growth of the immigration detention system also coincided with the War on Drugs continued by President Ronald Reagan in the 1980s. One of President Reagan’s signature laws, the Anti-Drug Abuse Act of 1988, made changes to the Immigration and Nationality Act. It required mandatory detention of non-citizens who committed an “Aggravated Felony.” This term was vaguely defined and subjected thousands of immigrants to mandatory detention due to subjective interpretation by immigration officials on what crimes qualified as an aggravated felony. (It was not until 2018 that the US Supreme Court found that the vagueness of this term was unconstitutional under the 5th Amendment Due Process Clause).
By 1996, the Immigration Reform and Immigrant Responsibility Act expanded the list of crimes that subjected legal immigrants and undocumented immigrants to mandatory detention. This expansion also included non-violent crimes. As the backlog of deportation cases before immigration courts increased over the years, the wait-time for immigration court hearings also increased. Thousands of immigrants have spent years in detention without a chance to be released because their cases were taking longer to complete. It is estimated that mandatory detention affects approximately 200,000 immigrants every year.
Although the September 11, 2001 attacks led to the creation of US Immigration and Customs Enforcement (“ICE”) and Customs and Border Patrol, the path toward treating documented and undocumented immigrants as criminals started long ago. Since the Reagan administration, the ICE detention system has grown to roughly the 13th largest prison system in the country. However, unlike those charged with a crime, immigrants do not have a right to legal representation under the US Constitution. This is extremely problematic as the Trump administration has removed Obama-era immigration enforcement priorities and now allows for the detention of any undocumented immigrant regardless of whether they are minors, have US-born children, or have no criminal history. President Trump’s “grab everyone and anyone” approach has resulted in over 2,000 children separated from their families at the US-Mexico border and placed in detention facilities. Children as young as three years old were ordered to appear in immigration court without the right to an attorney.
Scrutiny over ICE’s increased detention of children has led to the discovery of abuses in the detention system. A Federal Judge recently confirmed that ICE was forcibly drugging children without consent. Over the past decade, thousands of immigrants have reported sexual abuse while under ICE custody. This past June, a six year old child was sexually abused by another detainee. However the only step taken by ICE was to require her to sign a form acknowledging she was told to stay away from her abuser. Despite the history of abuse in the system, for-profit prisons continue to spend millions of dollars in lobbying Congress to keep this system alive- a system where adults and children can be in prison conditions for years without a legal right to an attorney and regardless whether they committed a crime or not.
These abuses have led to calls to Abolish ICE. It’s a great rallying call, but let’s acknowledge that ICE isn’t the problem- it’s the result. ICE is the result of a system that historically discriminates against the marginalized and non-white people. It is the result of the same political processes that created Jim Crow and the disproportionate criminalization and mass incarceration of African Americans.
Immigration Detention is part of our country’s prison industrial complex. Regardless of whether ICE is abolished, our long-established laws and government still allow for mandatory detention for even non-violent offenses, long-term detention without legal representation, and a disregard of due process in the name of national security. Until we address these issues, ICE and the criminalization of immigrants will continue to exist in one form or another.
