Mandatory Detention and the Commodification of Immigrants

Guest Blogger: Brooke Longuevan, second-year law student, University of San Francisco

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Among many other provisions the IIRIRA included a major mandatory detention provision. In theory, under the IIRIRA, almost all noncitizens with criminal records who are placed into removal proceedings or subject to deportation must be detained throughout those proceedings or until they are deported. Although the dominant conservative immigration narrative focuses on criminal immigrants, the law also requires detention for: (1) aliens inadmissible or deportable on national security grounds; (2) asylum seekers in the expedited removal process, until they demonstrate a credible fear of persecution; (3) other arriving aliens who appear inadmissible for other than document- related reasons; and (4) persons ordered removed, for at least 90 days following their final order of removal. In addition, all other immigrants in removal proceedings may be detained.  

Although immigration detention purports to serve an administrative, civil purpose, in practice it mirrors criminal incarceration. Detainees are often handcuffed or shackled and subjected to invasive body searches. They experience severe limitations on visitation, movement, and recreation, and often have very limited access to medical and legal services. Detainees are housed in jails and private detention facilities and can be commingled with criminal jail populations.  

This commingling is particularly troubling because the objectives behind criminal incarceration and immigration detention are entirely different. Most immigrants in detention are not criminals and should not be subjected to punitive measures. The similarity of immigration detention and criminal incarceration also is problematic because immigrant detainees are not afforded the same rights as criminal detainees. Individuals in immigration detention lack due process protections; most importantly immigrant detainees are not entitled to the assistance of counsel at government expense and most do not have access to pro bono counsel. As a result, most immigrants represent themselves at deportation and asylum hearings where the chances of success are very low due to the complexity of immigration law and virtually no access to supporting evidence and testimony.  

Because the IIRIRA mandated detention for such a large category of crimes and statuses the number of individuals in immigration detention skyrocketed. Predictably, private prison corporations jumped at the opportunity to profit off of the incarceration of immigrants. Corporations such as Corrections Corporation of America (CCA) and the Geo Group contracted with the United States government to build new detention facilities and oversee the detention process. These private for-profit immigration detention centers are poorly maintained and foster substandard living conditions that threaten the health of those in detention. Immigrants detained in these centers have reported scores of human rights abuses citing overcrowding, freezing concrete cells, denial of medical care to children, confiscating legal documents and personal belongings, and racially charged insults and death threats. Food often is spoiled, meager, and provided at irregular times, and the water non-potable. The squalid conditions of detention centers only serve to increase the punitive nature of immigration detention.  

The immigration industrial complex has become a lucrative extension of the prison industrial complex. In 2013, CCA, who is publicly traded on the New York Stock Exchange, boasted $1.69 billion in total yearly revenue and $473 million in gross yearly profit. If the U.S. government eliminated mandatory immigration detention, corporations like CCA and Geo would suffer major financial crises. Private prison companies spend millions of dollars lobbying Congress and the Department of Homeland Security for harsher immigration laws in order to build and increase their business and profits. It is not surprising then to see how punitive and condemnatory our immigration laws have become. This scheme of mandatory detention and privatization of detention centers has resulted in the commodification of immigrants and continues to foster an environment that is ripe for human and civil rights abuses.

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