The case against immigration prisons

Law professor César Cuauhtémoc García Hernández analyzes why America puts so many immigrants behind bars.

 

Until the early 1980s, the United States rarely locked up people for the act of migration. Immigrants were not treated as security threats. Most undocumented people crossing the Southwest border were young men from Mexico looking for work in U.S. agriculture, and after their jobs ended, many returned home. That all changed when Congress criminalized the kind of migration that had occurred freely for much of the previous century, paving the way for the incarceration of people accused of breaking civil or criminal immigration laws.

Today, the U.S. incarcerates nearly 400,000 immigrants annually. They range from those caught crossing the border unlawfully and the growing numbers of people requesting asylum to legal immigrants who have lived and worked in the U.S. for decades. Despite the increasing number detained by Immigration and Customs Enforcement (ICE), few are convicted of serious crimes — and more than a third have never been convicted of even a minor violation.

Growing up in southern Texas in a housing project for farmworkers, César Cuauhtémoc García Hernández experienced the rise of immigrant detention during the Reagan era, not as a distant political debate, but as “life-and-death developments about people we knew.” Later, after leaving Texas for college and law school, García Hernández returned to the Rio Grande Valley as a newly minted immigration lawyer, confident in his knowledge of the U.S. immigration system — until he began representing immigrants detained at the Port Isabel Detention Center.

Port Isabel is a razor-wire-ringed complex a short drive beyond the bamboo thickets of the Laguna Atascosa National Wildlife Refuge. This is where García Hernández encountered America’s vast network of shadow prisons while representing people like Gerardo Armijo. A permanent resident who was born in Mexico but grew up in the Texas Borderlands, Armijo served in the Iraq war and returned from military service suffering from PTSD. He turned to drugs and was caught and convicted of possession. Armijo then ended up in detention, fighting a deportation order. (Not even military service can protect an immigrant who lacks U.S. citizenship from deportation.)

Law professor and author César Cuauhtémoc García Hernández outside the Aurora, Colorado, ICE detention facility.
Jolene Yazzie/High Country News

García Hernández also learned of children held elsewhere in America’s migrant detention archipelago, such as 3-year-old Diego Rivera Osorio, whose mother fled threats of kidnapping and assault in Honduras. By the time he was granted a special visa for children, Rivera Osorio had spent most of his life in the Berks Family Residential Center, or “baby jail,” near Philadelphia.

Now a law professor at the University of Denver, García Hernández has spent more than a decade working inside America’s immigration prison system — a system that has grown so large, it is hard to imagine immigration enforcement without it. In Migrating to Prison, García Hernández dispels that myth, arguing that the U.S. can and should dismantle its immigration prisons.

Recently, High Country News spoke with García Hernández about the emergence of immigration prisons, the policies underpinning them, and the importance of telling the stories of the people behind bars. This interview has been edited for clarity and length.

High Country News: What inspired you to write this book?

César Cuauhtémoc García Hernández: Because stories are powerful. For me, the story of the development of immigration prisons is one that is not talked about nearly enough. We think of them as being inevitable, right? That they’re this component of a functioning immigration law system. One of the goals that I have is to point out that that’s not true.

Entering the United States without authorization has been a federal misdemeanor since 1929. Same with illegal re-entry (re-entering after having previously been deported). The thing is, those two laws were on the books for about a century without being used very much. But during the Bush administration, we started seeing a renewed interest by prosecutors in tapping this power that they had to criminally prosecute people for immigration offenses.

My interest in prisons really goes back to the Obama administration, when my clients were almost all locked up for one reason or another. Then, once I started teaching, I was able to track the progression of immigration prisons. I was able to see that this system was growing, really, at an unprecedented rate. This was under President Obama — the most liberal president in the recent history of the United States. Once the (Trump) election happened, it became obvious that this was going to be an even more important issue.

In writing this book, I wanted to force people to have that conversation about whether this is what we want to be doing as a country. Right now, I don’t think we’re asking that question. We’re just assuming that if you don’t have people locked up, then the whole immigration system is going to come crumbling down around us.

HCN: As a lawyer and academic, was it hard to dive into storytelling mode?

CGH: My comfort zone is in talking about laws and policies. That’s really dry. It removes the person from the focus of my attention, and I’m comfortable with that. I’ve developed a successful career doing that. But at the end of the day, the reason that I’m interested in law and policy is because of the way it impacts human beings.

In this book, it was important for me to make (people) the center of attention as I’m telling the story of the politics and the history of immigration prisons. I wanted to remind us that the cold bureaucracy of the federal government’s immigration law enforcement apparatus doesn’t exist in a vacuum. It exists in communities.

HCN: You grew up in the Rio Grande Valley, where migration and the border are very visible parts of the landscape and culture. Now you live in Colorado, where immigration issues are invisible for many people. How does that dynamic play into our understanding?

CGH: I think that’s huge. Most people in the U.S. think of (immigrant detention) as being a problem that exists someplace else. That reaction helps explain why a lot of these facilities are in the middle of nowhere. They’re in isolated places. You go to Arizona, the prisons are in the middle of the Sonoran Desert. South Texas is the same thing.

Part of the logic of prisons is that they suggest that there’s a reason for them to be there. Why would we spend all this money locking people up if there wasn’t a reason for it? When you’re surrounded by barbed wire and you’re in an orange jumpsuit, there must be some danger that you pose — even if we don’t know what the danger is. 

One of the things that I find fascinating about the Aurora Facility (an immigrant detention center near Denver) is it’s in the middle of a large metropolitan area. Nonetheless, most people don’t know about it. That’s a result of the way in which ICE treats the folks there. It’s very isolating. There are very few people who ever go in there, and most immigrants in detention don’t have lawyers, which means advocates aren’t going in and out.

HCN: Even though the data show that immigration has the effect of reducing crime rates, one of the central myths driving incarceration is that immigrants bring crime to America. How has the growth of immigration detention contributed to this myth?

CGH: Part of the logic of prisons is that they suggest that there’s a reason for them to be there. Why would we spend all this money locking people up if there wasn’t a reason for it? When you’re surrounded by barbed wire and you’re in an orange jumpsuit, there must be some danger that you pose — even if we don’t know what the danger is. When you isolate people from one another, then you make them afraid of each other. The prison does that extremely efficiently.

If (detained immigrants) were out in the community waiting for their immigration court date, and we got to know them and their stories, it would be much harder to justify keeping them behind bars. It would be the guy building my house, the woman who cleans my office, the people who are working in the kitchen at the restaurant that I like to go to. They would just be ordinary people, as opposed to “criminal aliens.”

HCN: And yet prisons are becoming a larger and larger part of the immigration enforcement system. Why does that matter?

CGH: I think it makes it normal to think of the prisons as a way of responding to social problems. The people who end up in immigration prisons are mostly people who came here to work or came here to reunite with their family, or they came here because they were afraid for their life someplace else. Even if they’re violating immigration laws, they’re not hurting anyone in any tangible sense.

So why are we throwing the second most severe power that the government has at its disposal at people accused of a fairly benign, harmless activity? The only thing that’s heavier (than incarceration) is the government’s power to kill people.

HCN: California lawmakers just passed a bill banning private prisons from operating in the state, which would also apply to for-profit immigration detention facilities. Does that give you hope that the U.S. can dismantle this system?

CGH: I don’t think California banning private prisons is going to dramatically reduce the number of people in immigration prisons. I can imagine that new facilities will pop up just across the border in Nevada or Oregon.

To me, what California did is powerful because it shows that advocates have the power to shift the conversation about migration so much that it actually results in a very drastic turnaround of law and policy. This shift in California suggests that it’s possible to transform the narrative around migration and the way we think of migrants.

Immigrants are ordinary human beings: They’re going to do things that are really great, and some of them are going to do things that are really bad, and most of them are going to do a combination of the two. That doesn’t mean that they stop being human, and it doesn’t mean that they should stop being part of our community. 

Sarah Tory is a correspondent for High Country News. She writes from Carbondale, Colorado. 

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