Governments have long relied on detention to enforce immigration laws. In recent years, this practice has become an increasingly common feature of immigration law enforcement. With approximately 32,000 people confined in immigration detention centers each day, the United States stands apart in the size of its immigration detention system. It is not alone, however, in tapping the state’s power to use detention as a means of regulating cross-border movement by people. Other immigrant-receiving countries, notably western European nations, also confine individuals suspected of violating immigration law. Governments do not promote immigration detention on the basis that detainees merit punishment. Rather, confinement is typically justified as a means of identifying potential immigration law violators, examining whether they have a rightful claim to remain in the country, and, if not, facilitating deportation. Though immigration detention to some scale is a common practice in immigrant-receiving nations, it is not without critics. With immigration detention’s growth has come increased scrutiny from academics, advocates, policymakers, journalists, and others. Academics grapple with how immigration detention operates, immigrants and advocates routinely challenge aspects of confinement with varying degrees of success, journalists disclose salient features of immigration detention, and policymakers occasionally engage in internal examinations of their own government’s detention practices. Regardless of the source, these critiques have created a growing body of literature about immigration detention. This article groups selected discussions of immigration detention into broad categories: Statutes, Litigation, Conditions of Confinement, the use of Private Prisons to detain suspected immigration law violators, and immigration detention Outside the United States. It also identifies works that provide a general overview of immigration detention.
Despite immigration detention’s prominent role in the modern immigration law enforcement regime, the literature covering the range of features that this type of confinement entails remains limited. Instead, most analyses focus on discrete aspects of immigration detention. Few book-length analyses of immigration detention exist. Among those that have been written, Dow 2004 provides a compelling journalistic glimpse into life inside immigration detention centers. Welch 2002 provides a similarly strong discussion of changes to the legal architecture of immigration detention that occurred in 1996 in the United States, and that have had a lasting impact on the way in which immigration detention has unraveled since then. Wilsher 2012 takes a broader approach, discussing immigration detention in the context of obligations imposed on states by international human rights norms and liberal principles of legality. Kanstroom 2007 exhaustively analyzes the expanding severity of immigration law generally, including detention. Finally, though not a book-length work, Noferi 2012 is included because it succinctly represents the complex immigration detention net in a single graphic.
Dow, Mark. American Gulag: Inside U.S. Immigration Prisons. Berkeley: University of California Press, 2004.
A detailed journalistic account of immigration detention in the United States in the 1980s and 1990s. Addresses conditions of confinement, reliance on private prison operators, immigration detention in the aftermath of the attacks of 11 September 2001, and related topics.
Kanstroom, Daniel. Deportation Nation: Outsiders in American History. Cambridge, MA: Harvard University Press, 2007.
Comprehensive study revealing shifts in legal doctrine that created an increasingly severe immigration law regime. Elaborates on “extended border control” and “post-entry social control” types of deportation laws. The former allow removal of people who evade admission requirements or violate an explicit condition of their authorized stay, while the latter target selected criminal or political conduct deemed undesirable.
Noferi, Mark. “Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings.” Michigan Journal of Race and Law 18 (2012): 63–129.
Graphically illustrates (on p. 75) the process by which immigrants are detained pending immigration proceedings.
Welch, Michael. Detained: Immigration Laws and the Expanding I.N.S. Jail Complex. Philadelphia: Temple University Press, 2002.
Discusses immigration detention in light of political debates about immigrants in the 1990s, in particular the Antiterrorism and Effective Death Penalty Act of 1996 and Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Highlights financial aspects of immigration detention and detention of juveniles.
Wilsher, Daniel. Immigration Detention: Law, History, Politics. New York: Cambridge University Press, 2012.
Thorough study of the expansion of immigration detention, especially as it applies to unauthorized migrants. Addresses the role of international human rights law in overseeing or limiting the use of immigration detention; looks at the extent to which immigration detention centers are extralegal geographic spaces; and questions whether widespread use of immigration detention conforms to liberal states’ adherence to the rule of law.
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