There is nothing ‘civil’ or humane about the detention of noncitizens

Last week, Homeland Security Secretary Alejandro Mayorkas announced that U.S. Immigration and Customs Enforcement (ICE) will stop detaining immigrants in two county jails, in Massachusetts and Georgia, currently under federal investigation for abuses ranging from the use of flash-bang grenades and dogs against immigrants in custody to unwanted and unconsented to gynecological procedures. In heralding these closures, Secretary Mayorkas declared, “We have an obligation to make lasting improvements to our civil immigration detention system.” 

No, Mr. Secretary, we have an obligation to end it.

Today, immigration detentions are at the lowest number in decades, thanks to a combination of tenacious organizing and advocacy efforts, strategic litigation and the impact of a global pandemic. But this “low” is still quite high: somewhere around 15,000 to 20,000 persons on any given day. Under the Trump administration, that number reached more than 55,000 in 2019. If left unchecked, we could soon reach that number again. 

The Immigration and Nationality Act was passed in 1952 and, among other things, allowed immigration authorities to exercise their discretion to grant release from detention on bond for certain noncitizens. Two years later, in 1954, the United States announced it would end detention except in extraordinary circumstances. Some targeted, and discriminatory, detentions of mostly Black and Brown noncitizens continued, namely detention of those who arrived with the Mariel boatlift of Cubans, and Haitian and Central American asylum seekers. But the number of those in custody remained relatively low, hovering just under 7,000 in the early 1990s. 

Over the next 25 years, the number of noncitizens detained by ICE grew dramatically. This was because of changes in immigration law and criminal law that increasingly, and relentlessly, targeted poor communities and communities of color; criminalized crimes of poverty; and made detention and deportation mandatory for minor, nonviolent misdemeanors. In the past 25 years, such mass detention and subsequent deportation has destroyed families and communities, created overwhelming financial hardship and given rise to significant mental health problems.

There is nothing “civil” about the so-called “civil immigration detention system.” Indeed, those held in immigration custody are incarcerated in a network of over 200 jails and prisons across the United States. As Justice Sonia Sotomayor asked during an oral argument in 2018, “You put [immigrant detainees] in orange suits, they are shackled during visitation and court visits, they are subject to surveillance and strip searches, they are referred to by number, not by name. So in which ways is immigration detention different than criminal detention?” The answer, of course, is that there is no difference. The system itself is rotten — plagued by death, abuse, impunity and violence. In 2020 alone, 21 people died in immigration detention, and staggering patterns of sexual assault in immigration detention came to light. Of 1,224 complaints made regarding sexual abuse in immigration detention between 2010 and 2017, only 43 were investigated.

The decision to end the detention of immigrants at the Irwin County Detention Center in Georgia and the Bristol County House of Corrections in Massachusetts presents a tremendous victory. No one, whether in civil or criminal custody, should be subject to the kinds of physical, sexual and verbal abuses often inflicted upon immigrants at these facilities. And the bravery of the men and women who spoke out about the horrific treatment they suffered, as well as the tireless work of organizers and advocates on their behalf, cannot be understated. 

In 1891, the U.S. government demanded that ships keep passengers aboard until they could determine whether foreign passengers could be legally admitted into the United States. Frustrated that ships were now makeshift hotels and could not be used for business, private steamship companies set up warehouses ashore to hold noncitizen passengers. When inspectors from the Department of Labor visited, they described the warehouses as “death traps.” 

From the beginning, there has been nothing civil or humane about the detention of noncitizens. As the number of people in immigration detention has soared, reported abuses have multiplied and grown more horrifying. The “death traps” of the 1890s are with us today. Immigration detention cannot be improved, and the closure of Irwin and Bristol should be the first step toward ending immigration detention altogether.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law. She is part of a team of survivors, organizers, activists and lawyers who have been working to expose abuses at the Irwin County Detention Center. Follow her on Twitter @sshermanstokes.